Ex Parte Tsutsumi et alDownload PDFPatent Trial and Appeal BoardJun 25, 201310254760 (P.T.A.B. Jun. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte TAKAYUKI TSUTSUMI and YOSHIKAZU KOBAYASHI ____________________ Appeal 2011-003043 Application 10/254,760 Technology Center 2400 ____________________ Before CAROLYN D. THOMAS, DEBRA K. STEPHENS, and PATRICK M. BOUCHER, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-003043 Application 10/254,760 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 2, 4-6, 8-12, 14, 17, 23-26, and 28-32. We have jurisdiction under 35 U.S.C. § 6(b). Claims 3, 13, 15, 16, 18, 22, and 27 are canceled. 1 We AFFIRM-IN-PART. Introduction The claims are directed to voice transmitting and receiving systems. Voice data from speech start to mute are transmitted as a voice file to a second unit (Abstract). Exemplary Claim Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A voice data transmitting and receiving system for transmitting and receiving voice data as packet data via a network, the system comprising: a first transmitting and receiving unit which transmits voice data of a communication voice from a detected speech start 1 Claims 7 and 19-21 are objected to as being dependent upon a rejected base claim, but indicated as being allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims (Final Rej. 8). This matter is not before us since we lack jurisdiction over petitionable matters. See, e.g., MPEP § 706.01 Appeal 2011-003043 Application 10/254,760 3 in said communication voice till a detected mute in said communication voice as a voice file by packet switching; and a second transmitting and receiving unit which receives the voice data and outputs the received data, wherein the voice data are transmitted by adding a given notification tone to an end of the voice file. REFERENCES Uppaluru Kaminsky Scherpbier Anandakumar US 5,915,001 US 6,295,342 B1 US 6,621,834 B1 US 6,801,532 B1 Jun. 22, 1999 Sep. 25, 2001 Sep. 16, 2003 (filed Nov. 5, 1999) Oct. 5, 2004 (filed Dec. 14, 1999) REJECTIONS The Examiner made the following rejections: Claims 1, 2, 4-6, 8-12, 14, 17, 23-26, and 28-32 stand rejected under 35 U.S.C §103(a) as being unpatentable over Scherpbier, Kaminsky, and Uppaluru (Ans. 4). ISSUE 1 35 U.S.C. § 103(a): Claims 1, 2, 4-6, 8-12, 17, 23-26, and 28-32 Claim 1: Appellants assert their invention is not obvious over Scherpbier, Kaminsky, and Uppaluru because none of the references, taken alone or in Appeal 2011-003043 Application 10/254,760 4 combination, teaches or suggests “the voice data are transmitted by adding a given notification tone to an end of the voice file” (App. Br. 11). According to Appellants, Kaminsky discloses “storing a ‘voice form voice file’ in which a separator tone is appended to user’s responses” and Uppaluru “discloses creating voice files after data transmission has already occurred” (App. Br. 12). Specifically, Appellants contend in Kaminsky all of the user’s responses solicited from a user are stored in a single mailbox with each response separated with a separator tone (App. Br. 13). Therefore, Appellants argue Kaminsky’s system is not transmitting the voice-form voice file by adding the separator tone to the voice-form voice file (id.). Appellants next argue Uppaluru does not teach or suggest the disputed limitation. Specifically, Appellants argue the “conventional telephone” of Uppaluru does not add any tone to the end of voice data prior to transmission to a receiving party (App. Br. 14). According to Appellants, since the voice data and the touch tone data are necessarily transmitted separately, the voice data is not transmitted by adding a notification (App. Br. 15). Appellants additionally contend that even if Uppaluru’s voice and touch tone data were transmitted in the same file, Uppaluru does not append the touch tone data to the end of a file (App. Br. 16). Further, Appellants assert, the touch tones of Uppaluru are not appended to voice data (id.). Claim 11: Appellants argue the combination of Scherpbier, Kaminsky, and Uppaluru does not teach or suggest “a given notification tone is added … to Appeal 2011-003043 Application 10/254,760 5 notify to the opposite side of communication that the present speech is transmitted” as recited in claim 11 (App. Br. 18). Appellants add to the arguments set forth for claim 1 by arguing since Kaminsky’s file is not transmitted anywhere, Kaminsky’s tone cannot notify an opposite communication side that speech has been transmitted (App. Br. 19). Additionally, Appellants assert Uppaluru’s tones are used to convey a user response, but are independent of a user’s voice input; therefore, Uppaluru’s touch tones do not notify an opposite side of communication that present speech has been transmitted (id.). Issue 1: Has the Examiner erred in finding the combination of Scherpbier, Kaminsky, and Uppaluru teaches or suggests: (a) “the voice data are transmitted by adding a given notification tone to an end of the voice file” as recited in claim 1; and (b) “a given notification tone is added to the end of the voice file to notify to the opposite side of communication that the present speech is transmitted” as recited in claim 11? ANALYSIS We agree with the Examiner’s findings and conclusions and adopt them as our own. We highlight and address specific findings and arguments regarding claims 1 and 11 for emphasis. With respect to claim 1, Appellants’ arguments appear to focus on the individual differences between the limitations of claim 1 and the Scherpbier, Kaminsky, and Uppaluru references (App. Br. 12-17; Reply Br. 5-7). It is Appeal 2011-003043 Application 10/254,760 6 apparent, however, from the Examiner’s line of reasoning in the Final Rejection, that the basis for the obviousness rejection is the combination of these references. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F. 2d 413, 425 (CCPA 1981). Specifically, the Examiner relies on Kaminsky to teach the technique of adding a separator tone (notification tone) to the voice file to identify the end of a response (Ans. 10; col. 2, ll. 33-47). Kaminsky further teaches appending a separator tone to the voice-form voice file prior to moving the user response from the temporary voice file to the voice-form voice file (col. 6, ll. 54-57; Ans. 5 and 11). Therefore, Kaminsky teaches adding a given notification tone to an end of the voice file and transmitting the voice file. The Examiner also relies on Uppaluru to teach using a touch tone to transmit input to another communication unit (Ans. 10; col. 20, ll. 12-25). The Examiner further notes Scherpbier teaches appending a silent frame as a notification of the end of the voice data before transmitting the voice data over the packet network (Ans. 11). Therefore, the combination of Kaminsky’s adding a notification tone at the end of a voice file or voice data and Uppaluru’s transmitting data by adding a notification tones teaches “the voice data are transmitted by adding a given notification tone to an end of the voice file” as recited in claim 1. The Examiner’s further citation to Scherpbier’s teaching of appending a notification at the end of voice data before transmitting the voice data supports our finding that the combination teaches the disputed limitation. Appeal 2011-003043 Application 10/254,760 7 Similarly with respect to claim 11, we are not persuaded the Examiner erred in finding the combination of Scherpbier, Kaminsky, and Uppaluru teaches or suggests “a given notification tone is added to the end of the voice file to notify to the opposite side of communication that the present speech is transmitted.” Initially, we determine “the opposite side of communication” is not defined in Appellants’ Specification. The Examiner finds Scherpbier discloses adding notification positions to voice data to indicate the beginning of a new voice position to a party to whom the voice data is being transmitted (Ans. 12). The Examiner relies on Kaminsky and Uppaluru as teaching “voice data are transmitted by adding a given notification tone to an end of the voice file” (Ans. 12-13). Again, Appellants appear to be arguing the references individually (App. Br. 17-19; Reply Br. 5-7). For the reasoning set forth above with respect to claim 1, we find the combination of Scherpbier, Kaminsky, and Uppaluru teaches or suggests “a given notification tone is added to the end of the voice file.” Additionally, we find Kaminsky’s and Uppaluru’s teaching combined further with Scherpbier’s teaching of waiting for notification of a new voice position, teaches “a given notification tone is added to the end of the voice file to notify to the opposite side of communication that the present speech is transmitted” as recited in claim 11. We further emphasize the conclusion of obviousness can be based on the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, and the background knowledge possessed by a person having ordinary skill in the art, and an obviousness “analysis need not seek out precise teachings directed to the Appeal 2011-003043 Application 10/254,760 8 specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Here, it is our view that an artisan possessing common sense and creativity at the time of the invention would have been familiar with using tones as a communication device to, for example, notify another communication unit about an event such as the end of a file and the transmission of a file. Indeed, Appellants have not persuaded us combining the teachings and suggestions of the references would have been “uniquely challenging or difficult for one of ordinary skill in the art” or “represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Therefore, we agree with the Examiner that it would have been obvious to an ordinarily skilled artisan to combine the teachings and suggestions of Scherpbier, Kaminsky, and Uppaluru (Ans. 5, 6, 8, 9, 14, and 15). Accordingly, the Examiner did not err in finding that Scherpbier, Kaminsky, and Uppaluru, respectively teach or suggest “the voice data are transmitted by adding a given notification tone to an end of the voice file” as recited in claim 1 and “a given notification tone is added to the end of the voice file to notify to the opposite side of communication that the present speech is transmitted” as recited in claim 11. Claims 2, 4-6, 8-10, 12, 17, 23-26, and 28-32 were not separately argued and thus fall with their respective independent claims. Therefore, we conclude the Examiner did not err in rejecting claims 1, 2, 4-6, 8-12, 17, 23-26, and 28-32 under Appeal 2011-003043 Application 10/254,760 9 35 U.S.C. § 103(a) for obviousness over Scherpbier, Kaminsky, and Uppaluru. ISSUE 2 35 U.S.C. § 103(a): Claim 14 Appellants assert their invention is not obvious over Scherpbier, Kaminsky, and Uppaluru because none of the references teaches or suggests “wherein the first transmitting and receiving unit judges high packet loss possibility packet data as such and retransmits the high packet loss possibility packet data together with a preceding packet” (App. Br. 20). Specifically, Appellants argue that although the Examiner alleges the method taught in Scherpbier guarantees delivery of voice packets, it does not necessarily flow from the teachings of Scherpbier that a lost voice packet is retransmitted together with a preceding packet (App. Br. 20-21). Issue 2: Has the Examiner erred in concluding the combination of Scherpbier, Kaminsky, and Uppaluru teaches or suggests “wherein the first transmitting and receiving unit judges high packet loss possibility packet data as such and retransmits the high packet loss possibility packet data together with a preceding packet” as recited in claim 14? ANALYSIS We agree with Appellants. Although we agree with the Examiner that Scherpbier teaches or at least suggests retransmitting voice packets in the event of a loss of voice packets (Ans. 14), the Examiner has not shown that the prior art teaches or at least suggests, nor has the Examiner shown it was Appeal 2011-003043 Application 10/254,760 10 well known by skilled artisans at the time of the invention, that the retransmission includes a preceding packet. Accordingly, based on the record before us, we cannot sustain the rejection of claim 14 under 35 U.S.C. § 103(a) for obviousness over Scherpbier, Kaminsky, and Uppaluru. DECISION The Examiner’s rejection of claims 1, 2, 4-6, 8-12, 17, 23-26, and 28- 32 under 35 U.S.C. § 103(a) as being unpatentable over Scherpbier, Kaminsky, and Uppaluru is affirmed. The Examiner’s rejection of claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Scherpbier, Kaminsky, and Uppaluru is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED-IN-PART tj Copy with citationCopy as parenthetical citation