Ex Parte Wilson

Patent Trial and Appeal Board

Feb 11, 2015

12509974 (P.T.A.B. Feb. 11, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KELCE WILSON
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Appeal 2012-009611
Application 12/509,974
Technology Center 2400
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Before CARLA M. KRIVAK, JEFFREY S. SMITH, and HUNG H. BUI,
Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–23. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.2

1 The Real Party in Interest is Research In Motion Limited. App. Br. 3.
2 Our decision refers to Appellant’s Appeal Brief filed December 21, 2011
(“Br.”); Examiner’s Answer mailed March 15, 2012 (“Ans.”); and original
Specification filed July 27, 2009 (“Spec.”).
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant’s invention relates to a method for communication in a
packet-switched network which, when a determination is made that a call
has been set up with a quality of service (QoS) appropriate for a live voice
call that will carry recorded voice-based data, the quality of service (QoS) is
decreased for that call. Abstract.
Representative Claim
Claims 1, 16, and 20 are the independent claims on appeal.
Representative claim 1 is reproduced below:
1. A method for communication in a packet-switched
network, comprising:
setting up a call with a quality of service (QoS)
appropriate for a live voice call;
determining that the call will carry recorded voice-based
data; and
decreasing the QoS used on the call responsive to
determining that the call will carry recorded voice-based data.

App. Br. 15 (Claims Appendix) (disputed limitations in italics.)

Evidence Considered
Rabenko et al. US 6,885,657 B1 Apr. 26, 2005
(hereinafter “Rabenko”)
Hofmann et al. US 2005/0131984 A1 June 16, 2005
(hereinafter “Hofmann”)
Mathew et al. US 2009/0003556 A1 Jan. 1, 2009
(hereinafter “Mathew”)
Stahr US 7,555,114 B1 June 30, 2009
Gogic US 7,881,444 B2 Feb. 1, 2011
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Examiner’s Rejections
(1) Claims 1–3, 5, 6, 8–10, 12, 14–18, and 20–22 stand rejected
under 35 U.S.C. § 102(e) as being anticipated by Gogic. Final Rej. 2–11.
(2) Claims 4, 19, and 23 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gogic and Hofmann. Id. at 8–9.
(3) Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gogic and Stahr. Id. at 9–10.
(4) Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gogic and Rabenko. Id. at 10.
(5) Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gogic and Mathew. Id. at 10–11.

Issue on Appeal
Based on Appellant’s arguments, the dispositive issue on appeal is
whether Gogic discloses several limitations, including: (1) “decreasing the
QoS used on the call responsive to determining that the call will carry
recorded voice-based data” as recited in independent claims 1, 16, and 20;
(2) “packets comprising the pre-recorded message are buffered, and the pre-
recorded message is played from buffer memory” as recited in claim 5; and
(3) “when the call transitions from a recorded call state to live conversation,
the call switches to a channel having QoS appropriate for live voice calls” as
recited in claim 12. App. Br. 11–13.

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ANALYSIS
§ 102(e) Rejection of Claims 1–3, 5, 6, 8–10, 12, 14–18, and 20–22
based on Gogic

With respect to independent claims 1, 16, and 20, Appellant contends
Gogic does not disclose “decreasing the QoS used on the call responsive to
determining that the call will carry recorded voice-based data” as recited in
independent claims 1, 16, and 20. App. Br. 11–13. In particular, Appellant
argues Gogic only describes attempting to establish a VoIP call, determining
that a mobile station is unable to receive calls, and subsequently aborting the
call attempt. Id. at 12 (citing Gogic 8:25–39.) According to Appellant, once
a call attempt is aborted based on presence information as described by
Gogic, there is no call on which to decrease the QoS. Id.
We disagree. At the outset, we note that Appellant’s independent
claims 1, 16, and 20 are broad and simply require setting up a call with a
certain QoS level appropriate for a live voice call (i.e., normal conversation)
but the QoS level can be decreased if that call is determined to carry
recorded voice-based data (voicemail). As correctly found by the Examiner,
Gogic teaches setting up a Voice over Internet Protocol (VoIP) call, via a
virtual circuit-switched communication link that requires a certain quality of
service (QoS) level. Ans. 5–6, 15–16 (Gogic 1:46–59, 2:14–3:20, 5:7–9:4,
Figs. 1 and 2, and claim 1). According to Gogic, if a direct voice
communication between an origination mobile station and a destination
mobile station is precluded, a voicemail message is transmitted from the
origination mobile station at a lower QoS level than is required for the
virtual circuit-switched communication link (live voice call). Id. at 16
(citing Gogic claim 1 at 11:1–34.) As recognized by the Examiner, while
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the call attempt is aborted for live voice call, the origination mobile station
still continues the call with the destination mobile station, via voicemail. Id.
at 15. As such, we adopt as our own the Examiner’s findings and
explanations provided therein. Ans. 5–17.
For the reasons set forth above, we find no reversible error in the
Examiner’s position and, as such, sustain the Examiner’s anticipation
rejection of Appellant’s independent claims 1, 16, and 20.
With respect to dependent claim 5, Appellant contends Gogic does not
disclose “packets comprising the pre-recorded message buffered, and the
pre-recorded message is played from buffer memory.” App. Br. 12–13. We
are not persuaded. Voicemail messages as described by Gogic are
transmitted in packets and those packets representing voicemail messages
are stored in (buffer) memory of the destination mobile station and locally
played when the user accesses the voicemail. Gogic 3:22–63, 5:1–4, and
9:4–5. Accordingly, we also sustain the Examiner’s anticipation rejection of
Appellant’s claim 5.
With respect to remaining claims 2–4, 6–11, 13–15, 17–19, and 21–
23, Appellants present no separate patentability arguments. For the same
reasons discussed, we also sustain the Examiner’s rejection of claims 2–4,
6–11, 13–15, 17–19, and 21–23.
Lastly, with respect to dependent claim 12, Appellant contends Gogic
does not disclose “when the call transitions from a recorded call state to live
conversation, the call switches to a channel having QoS appropriate for live
voice calls.” App. Br. 13. In response, the Examiner understands that MMS
links as described by Gogic have a lower QoS than virtual circuit switched
links, and those MMS links are used for transmitting voicemails with virtual
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circuit switched links used for transmitting live voice calls. Ans. 17. Based
on that understanding, the Examiner then finds that, when a live voice call
starts, the call must be switched from a MMS link to a virtual circuit
switched link. Id. at 17 (citing Gogic 1:46–59, 2:14–39, and 9:32–49.)
While the Examiner’s findings and explanations are sufficient to
support obviousness under 35 U.S.C. § 103(a),3 such findings are not
sufficient to support anticipation under 35 U.S.C. § 102(e). Appellant’s
claim 12 refers to the same call that was determined to have carried
“recorded voice-based data” with QoS decreased in the manner recited in
independent claim 1, and further requires that “when [that] call transitions
from a recorded call state to live conversation, the call switches to a channel
having QoS appropriate for live voice calls.” See Spec ¶ 26.
In contrast, Gogic describes switching from a virtual circuit switched
link to a MMS link for voicemail. Ans. 5–6. The fact that another live voice
call can start does not mean that the same call “transitions from a recorded
call state to live conversation.” We find no evidence from Gogic of any
disclosure of the disputed limitation of claim 12. Accordingly, we reverse
the Examiner’s anticipation rejection of Appellant’s dependent claim 12.

CONCLUSION
On the record before us, we conclude the Examiner has not erred in
rejecting claims 1–11 and 13–23 under 35 U.S.C. § 102(e) and § 103(a).

3 In the event of further prosecution, the Examiner should consider whether
the combination of Gogic with the Title, Abstract, paragraph 30, and Figure
2 of Hoffman teaches switching a call to a channel having QoS appropriate
for live voice calls.
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However, the § 102(e) rejection of claim 12 based on Gogic should be
withdrawn.

DECISION
We AFFIRM the Examiner’s final rejection of claims 1–11 and 13–
23, but REVERSE the Examiner’s final rejection of claim 12 under
35 U.S.C. § 102(e) as being anticipated by Gogic.
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).

AFFIRMED-IN-PART

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