Ex Parte Yurchenko

Patent Trial and Appeal Board

Mar 30, 2016

12883647 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/883,647 09/16/2010
23117 7590 04/01/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Vitaliy G. YURCHENKO
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
JCE-5325-20 5262
EXAMINER
KASSIM, KHALED M
ART UNIT PAPER NUMBER
2468
NOTIFICATION DATE DELIVERY MODE
04/01/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VITALIY G. YURCHENKO
Appeal2014-006552
Application 12/883,647
Technology Center 2400
Before ROBERT E. NAPPI, LARRY J. HUME, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOW ARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 22--40, which constitute all of the claims pending in this application.
Claims 1-21 have been cancelled. App. Br. 18. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies iBasis, Inc. as the real party in interest. App. Br. 3.
Appeal2014-006552
Application 12/883,647
THE INVENTION
The disclosed and claimed invention is directed to systems and
methods of deciding how to route calls over a voice over internet protocol
telephone call routing system. Spec. i-fi-12, 13.
Claim 22, reproduced below, is illustrative of the claimed subject
matter on appeal:
22. A method of deciding how to route new telephone calls
over a Voice Over Internet Protocol (VOIP) call routing system,
compnsmg:
recording the call state of each telephone call being carried
by the VOIP call routing system in a real-time call state database;
updating the call states of the calls listed in the real-time
call state database each time a call state changes and immediately
after the call state changes; and
deciding how to route a new call over the VOIP call
routing system based on the information in the real-time call state
database.
RFFERFNCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Mussman US 2003/0012178 Al Jan. 16,2003
Malik US 6,654,453 B 1 Nov. 25, 2003
Karol US 2004/0199662 Al Oct. 7, 2004
Clark US 2004/0240381 Al Dec. 2, 2004
Mohaban US 7,209,473 Bl Apr. 24, 2007
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REJECTIONS 2
Claims 22, 29, 31, 33, 34, 37, and 39 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Mohaban in view of Malik. Final
Act. 5-7.
Claims 23, 24, and 35 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mohaban in view of Malik and Clark. Final Act. 7-
9.
Claims 26, 27, and 36 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mohaban in view of Malik and Mussman. Final
Act. 9-11.
Claims 30, 32, 38, and 40 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mohaban in view of Malik and Karol. Final Act.
11-13.
Claim 25 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mohaban in view of Malik, Clark, and Karol. Final Act.
13-14.
Claim 28 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Mohaban in view of Malik, Mussman, and Karol. Final
Act. 14--15.
2 In addition to the rejections discussed infra, in the Final Action the
Examiner rejected claims 33--44 under 35 U.S.C. § 112, second paragraph as
being indefinite for failing to particularly point out and distinctly claim the
claimed subject matter. Final Act. 4--5. The Examiner withdrew that
rejection in the Answer. Ans. 16.
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ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments the Examiner erred. In reaching this decision, we consider all
evidence presented and all arguments made by Appellant. We disagree with
Appellant's arguments regarding claims 22--40, as discussed below.
Claims 22, 33, and 34
The Examiner finds Mohaban teaches or suggests all of the limitations
of claim 22 except that it uses a historical call state database instead of the
"real-time call state database" recited in claim 22. Final Act. 5---6;
Ans. 17-18. The Examiner further finds Malik teaches using a real-time
database for implementing a call forwarding system. Final Act. 6. The
Examiner also finds that a person of ordinary skill in the art would have used
the teaching of a real-time database in Malik to modify the historical call
state database taught in Mohaban:
Mohaban and Malik are analogous art because they both are
related to "Communication System". Therefore, it would have
been obvious to one of ordinary skill in the art at the time of the
invention to be motivated to implement making routing decisions
for routing calls to be carried by the call routing system based on
information in the real-time database as taught by Malik with the
teachings of Mohaban for the purpose of further managing calls
in a real-time environment.
Final Act. 6.
Appellant states the Examiner acknowledges Mohaban does not teach
or suggest using a real-time call state database. App. Br. 9; Reply Br. 2-3.
Appellant argues Malik does not teach to suggest a "database indicating the
state of calls carried by a call routing system." App. Br. 9-10 (emphasis
omitted). Instead, Appellant argues Malik teaches using a database to
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provide optional phones services, such as call forwarding. App. Br. 10.
Therefore, Appellant argues, "Malik cannot provide the very teaching that
the Examiner admits is missing from Mohaban." Id.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The test for obviousness is not whether the claimed invention is expressly
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. In re Keller, 642 F.2d 413,
425 (CCPA 1981). Because Appellant's argument focuses on the teachings
of the individual references-i. e., how none of the references individually
teaches a real-time call state database-and not the combined teachings of
those references as applied by the Examiner, we find Appellant's arguments
are not persuasive. Instead, we agree with the Examiner, and adopt the
Examiner's findings, that a person of ordinary skill in the art would have
taken the teaching of using a real-time database from Malik and used it to
modify the historical database used on Mohaban to obtain a real-time call
state database to manage calls in a real-time environment.
Accordingly, we sustain the Examiner's rejection of claim 22, along
with the Examiner's rejection of claims 33 and 34, which are argued on the
same grounds.
Claims 2 3 and 3 5
The Examiner finds Clark teaches "traffic load balancing among trunk
groups by selecting another trunk if the traffic load of a trunk is above
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threshold." Final Act. 8; Ans. 21-22. The Examiner further finds it would
have obvious to a person of ordinary skill in the art to apply the teachings of
Clark to the combined Mohaban/Malik system using a real-time call state
database. Final Act. 8; Ans. 20-22.
Appellant agrees with the Examiner that "Clark discloses that if a
particular trunk group of a call routing system is becoming overloaded, that
a new trunk group should be opened so that additional calls can traverse the
new trunk group." App. Br. 11. However, Appellant argues Clark does not
teach doing so using a real-time call state database as recited in claim 23. Id.
"Instead, Clark calls for directly monitoring the calls being carried over a
trunk group to determine if the trunk group is overloaded" and does not
provide the teaching that is missing from Mohaban and Malik. Id.
Because Appellant's argument is based on attacking the references
individually and not the combined teachings of the references, Appellant's
argument is not persuasive. Instead, we adopt the Examiner's findings
discussed above and for claim 22 as our own and sustain the Examiner's
rejection of claim 23, along with the rejection of claim 35, which is argued
on the same grounds.
Claims 2 4 and 2 5
Appellant groups claim 24 and 25 together. App. Br. 12-13. We
select claim 24 as the representative claim of the group. See 37 C.F.R.
§ 41.37(c)(iv).
Claim 24 recites that "the deciding step comprises deciding to route
the new call through one of a plurality of Internet service providers." Claim
App'x (App. Br. 18). The Examiner finds Mohaban teaches deciding to
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route a VOIP call through selecting an internet service provider. Final
Act. 9; Ans. 22-23. Accordingly, the Examiner concludes the combination
of Mohaban, Malik and Clark renders the claim obvious. Id.
Appellant agrees that Mohaban teaches "selecting an Internet service
provider, this portion of Mohaban makes it clear that the user selects a
particular Internet service provider, and the call routing system then routes
the call through the Internet service provider selected by the user." App. Br.
12. However, Appellant argues Mohaban does not teach doing so using a
real-time call state database as recited in claim 24. App. Br. 12-13.
As above Appellant's argument is based on attacking the references
individually and not the combined teachings of the references and, as such,
Appellant's argument is not persuasive. Instead, we adopt the Examiner's
findings regarding claims 22, 23, and 24 as our own and sustain the
Examiner's rejection of claim 24, along with the rejection of claim 25,
which is grouped with claim 24.
Claims 26-28 and 36
Appellant groups claim 26-28 and 36 together. App. Br. 13-14. We
select claim 26 as the representative claim of the group. See 37 C.F.R.
§ 41.37(c)(iv).
Claim 26 recites that the deciding step comprises determining whether
a first gateway is approaching capacity and, if so, routing a call through a
different destination gateway. Claim App 'x (App. Br. 19). The Examiner
finds Mussman teaches that when there is no gateway resources to complete
a call, the directory gatekeeper will route a call through a different gateway.
Final Act. 9-1 O; Ans. 26-28. Accordingly, the Examiner finds it would have
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been obvious "to modify the invention of Mohaban and Malik to provide
alternate routing of call through multiple gateways for the purpose of
identifying and eliminate both overloaded parts of the network as well as
defective devices." Id.
Appellant agrees with the Examiner that Mussman teaches
"determining whether a first destination gateway utilized by the VOIP call
routing system is approaching its call carrying capacity." App. Br. 14.
However, Appellant argues Mussman does not teach doing so using a real-
time call state database as recited in claim 24. Id.
Because Appellant's argument is based on attacking the references
individually and not the combined teachings of the references, Appellant's
argument is not persuasive. Instead, we adopt the Examiner's findings for
claims 22 and 26 as our own and sustain the Examiner's rejection of claim
26, along with the rejection of claims 27, 28, and 36, which are grouped with
claim 26.
Claims 29, 30, 37, and 38
Appellant groups claim 29, 30, 37 and 38 together. App. Br. 14--15.
We select claim 29 as the representative claim of the group. See 37 C.F.R.
§ 41.37(c)(iv).
Claim 29 recites that "the deciding step comprises deciding to route
the new call through one of a plurality of Internet service providers." Claim
App'x (App. Br. 19). Appellant's argument is substantially the same as the
one made regarding claim 24. For the same reasons discussed above for
claim 24, Appellant's argument does not persuade us that the Examiner
erred. Instead, we adopt the Examiner's findings for claim 22 and 29 as our
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own and sustain the Examiner's rejection of claim 29, along with the
rejection of claims 30, 37, and 38, which are grouped with claim 29.
Claims 31, 32, 39 and 40
Appellant groups claim 31, 32, 39, and 40 together. App. Br. 16-17.
We select claim 31 as the representative claim of the group. 37 C.F.R.
§ 41.37(c)(iv).
Claim 3 1 depends from claim 22 and recites that "the deciding step
comprises deciding to route the new call through one of a plurality of
destination service providers." Claims App'x (App. Br. 20). The Examiner
finds Mohaban teaches deciding to route the new call through one of a
plurality of a service provider networks. Final Act. 7 (citing Mohaban 18: 1-
10); Ans. 31-32 (citing Mohaban 17:58----67). The Examiner further finds
Malik utilizes a real-time database and that it would have been obvious "to
implement making routing decisions for routing calls to be carried by the
call routing system based on information in the real-time database as taught
by Malik with the teachings of Mohaban for the purpose of further managing
calls in a real-time environment." Ans. 32.
Appellant argues that the destination service provider recited in claim
31 is "the local telephony service provider that will connect a call to the
called party." App. Br. 16. According to Appellant, Mohaban does not
teach or suggest connecting a call through a destination service provider;
instead, Mohaban teaches connecting calls through internet service providers
or a private data network. Id.
We are not persuaded by Appellant's argument that the Examiner
erred. During prosecution, claims must be given their broadest reasonable
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interpretation while reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Absent an express
intent to impart a novel meaning to a claim term, the words take on the
ordinary and customary meanings attributed to them by those of ordinary
skill in the art. Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d
1294, 1298 (Fed. Cir. 2003). Because Appellant has not provided any
support for the proposed construction of "destination service provider" (see
App. Br. 16), we use the broadest ordinary meaning of the term and
conclude that phrase is broad enough to encompass any service provider
located at the destination, including an internet service provider for an
internet enabled phone. Additionally, we agree with the Examiner that
Mohaban teaches a destination service provider (see Mohaban 17:57-18:10)
and, accordingly, adopt the Examiner's findings regarding claim 31.
Additionally, Appellant argues Mohaban does not teach routing calls
using a real-time call state database as recited in claim 31. App. Br. 16-17.
Because Appellant's argument is based on attacking the references
individually and not the combined teachings of the references, Appellant's
argument is not persuasive. Instead, we adopt the Examiner's findings for
claims 22 and 31 as our own and sustain the Examiner's rejection of claim
31, along with the rejection of claims 32, 39, and 40, which are grouped with
claim 31.
DECISION
For the above reasons, we affirm the Examiner's rejection of
claims 22--40.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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