Holder, Louis et al.Download PDFPatent Trials and Appeals BoardDec 4, 20202019004119 (P.T.A.B. Dec. 4, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/071,005 02/14/2008 Louis Holder Y2108-00123 DIV1 7617 7590 12/04/2020 JOHN BAIRD SUITE 1000 505 9TH STREET, N.W. WASHINGTON, DC 20004 EXAMINER JONES, PRENELL P ART UNIT PAPER NUMBER 2467 MAIL DATE DELIVERY MODE 12/04/2020 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LOUIS HOLDER and JEFFREY CITRON ___________ Appeal 2019-004119 Application 12/071,005 Technology Center 2400 ____________ Before CAROLYN D. THOMAS, ERIC B. CHEN, and JON M. JURGOVAN, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2019-004119 Application 12/071,005 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 11, 23, 35, 47, and 48. Claims 1–10, 12–22, 24–34, and 36–46 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claimed subject matter is directed to Internet telephony communications between a source and a destination. (Abstract.) Claim 11, reproduced below, is illustrative of the claimed subject matter, with disputed limitations in italics and minor formatting: 11. An internet telephony system configured to use Session Initiation Protocol (SIP) signaling to setup a communication of streaming packets, the internet telephony system comprising: a relay configured to relay streaming packets of the communication between a caller and a call destination; a server configured to receive, process and transmit SIP signaling messages to setup the communication between the caller and the call destination and to select the relay to use for the communication, the selection being based at least on the quality of the communication, and wherein the server is configured to select the relay to decrease the latency of the communication. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Vonage Holdings Corporation. (Appeal Br. 1.) Appeal 2019-004119 Application 12/071,005 3 REFERENCES Name Reference Date O’Brien, Jr. et al. US 7,369,535 B2 May 6, 2008 Kobayashi US 2005/0246347 A1 Nov. 3, 2005 MeLampy et al. US 2002/0114282 A1 Aug. 22, 2002 REJECTIONS Claims 11, 23, 35, 47, and 48 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over O’Brien and Kobayashi.2 Claims 11, 23, 35, 47, and 48 stand rejected under 35 U.S.C. § 102(a) as being anticipated by MeLampy. OPINION § 103 Rejection—O’Brien and Kobayashi We are unpersuaded by Appellant’s arguments (Appeal Br. 6–8; see also Reply Br. 3–4) that the combination of O’Brien and Kobayashi would not have rendered obvious independent claim 11, which includes the limitation “wherein the server is configured to select the relay to decrease the latency of the communication.”3 The Examiner found that relay control section 110 of Kobayashi, which selects network paths to avoid congestion, corresponds to the 2 The Examiner inadvertently omitted the rejection of dependent claims 47 and 48 from the statement of the rejection. (Final Act. 6.) 3 Such limitation is a functional limitation for an apparatus claim. Thus, a claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (BPAI 1987). Appeal 2019-004119 Application 12/071,005 4 limitation “wherein the server is configured to select the relay to decrease the latency of the communication.” (Final Act. 5; see also Ans. 11–12.) The Examiner concluded that “it would have been obvious . . . to combine the teachings of O’Brien and Kobayashi to implement the limitation ‘wherein the server is configured to select the relay to decrease the latency of the communication’ for the purpose of further minimizing/avoiding congestion to decrease latency for a signal traveling between endpoints/nodes on a network.” (Ans. 5.) We agree with the Examiner’s findings and conclusions. O’Brien “relates to voice over Internet protocol (VoIP) real time protocol (RTP) routing.” (Col. 1, ll. 6–7.) Figure 1 of O’Brien illustrates Internet telephony network 10 (col. 3, ll. 9–11), which includes retail VoIP system 14 directly linked to the VoIP network 16 (col. 3, ll. 16–17) and media proxy servers 24, 26, and 28 (col. 3, ll. 22–24). O’Brien explains that “[t]he quality of a VoIP call is insured by controlling the path of the media stream to ensure that these voice packets traverse a known, and presumably managed, IP network” and “[t]he path of the voice packets can avoid congested networks or peering points.” (Col. 2, ll. 26–30.) Kobayashi relates to “a cache server and a network system having cache servers.” (¶ 3.) Figure 12 of Kobayashi illustrates a diagram of Quality of Service (QoS) path information (¶ 52), such that “[w]hen a congestion section (the link L1) exists on the path, the relay control section 110 uses the relay servers M301 and M302 existing on the network, to check whether it is possible or not to set a path from the Web server S1 to the QoS path reference relay control cache server C301 without passing through the congestion section.” (¶ 131.) Kobayashi explains that “it is possible to Appeal 2019-004119 Application 12/071,005 5 obtain desired content in a shorter time than the case of obtaining the content after the congestion status has been canceled.” (¶ 287.) A person of ordinary skill in the art would have recognized that incorporating relay control section 110 of Kobayashi, which avoids congested paths with a network, with Internet telephony network 10 of O’Brien, would improve O’Brien by providing the ability select a network path that reduces latency. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.”). Accordingly, we agree with the Examiner (Ans. 5) that modifying O’Brien to incorporate relay control section 110 of Kobayashi would have been obvious. Appellant argues the following: Cache servers (as used in Kobayashi) for data by their very nature are an anathema to Voice. Real Time Protocol (RTP) which is predominately used in VoIP, requires just that, real time delivery and reliable orderly delivery of voice packets. Typically, each voice packet is made of 30 milliseconds of voice, a series of these packets are played back to the user which replicates live speech. (Appeal Br. 6.) This is not the streaming data required of VoIP operations, and voice content of conversations are generally not predictable. Such an arrangement as proposed by the Office would render the current invention as well as O’Brien incapable of its intended purpose, that being internet telephony. (Id. at 7.) However, the Examiner’s articulated reasoning for combining O’Brien and Kobayashi is not based upon incorporating the cache server of Appeal 2019-004119 Application 12/071,005 6 Kobayashi into Internet telephony network 10 of O’Brien. Instead, the Examiner cited to Kobayashi for the concept of path selection within a network to avoid congestion, and thus, reducing latency. (Ans. 5.) Appellant further argues that “Kobayashi is silent regarding a teaching for selecting the relay to decrease latency” and “Kobayashi checks for paths that avoid congestion (i.e. load), which is unrelated to latency.” (Appeal Br. 8 (emphasis omitted); see also Reply Br. 2–3.) However, as discussed previously, Kobayashi explains that “it is possible to obtain desired content in a shorter time than the case of obtaining the content after the congestion status has been canceled.” (¶ 287.) Thus, because Kobayashi explains that shorter times can be achieved by avoiding congested areas in the network, Kobayashi teaches the limitation “decrease the latency of the communication.” Moreover, Appellants has not presented any persuasive evidence to support the argument that “congestion . . . is unrelated to latency.” Arguments of counsel cannot take the place of factually supported objective evidence. See, e.g., In re Huang, 100 F.3d 135, 139–140 (Fed. Cir. 1996). Thus, we agree with the Examiner that the combination of O’Brien and Kobayashi would have rendered obvious independent claim 11, which includes the limitation “wherein the server is configured to select the relay to decrease the latency of the communication.” Accordingly, we sustain the rejection of independent claim 11 under 35 U.S.C. § 103(a). Independent claims 23 and 35 recite limitations similar to those discussed with respect to independent claim 11, and Appellant has not presented any additional substantive arguments with respect to these claims. Appeal 2019-004119 Application 12/071,005 7 We sustain the rejection of claims 23 and 35, as well as dependent claims 47 and 48 for the same reasons discussed with respect to claim 11. § 102 Rejection—MeLampy We do not reach the additional cumulative rejections of claims 11, 23, 35, 47, and 48 under 35 U.S.C. § 102(a) as anticipated by MeLampy. Affirmance of the obviousness rejection based on O’Brien and Kobayashi discussed previously renders it unnecessary to reach the remaining rejection, as claims 11, 23, 35, 47, and 48 have been addressed and found unpatentable. Cf. In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009) (not reaching additional obviousness rejections). CONCLUSION The Examiner’s decision rejecting claims 11, 23, 35, 47, and 48 under 35 U.S.C. § 103(a) is affirmed. DECISION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11, 23, 35, 47, 48 103(a) O’Rourke, Kobayashi 11, 23, 35, 47, 48 11, 23, 35, 47, 48 102(a)4 MeLampy Overall Outcome 11, 23, 35, 47, 48 4 Cumulative Rejection. Appeal 2019-004119 Application 12/071,005 8 TIME PERIOD FOR RESPONSE 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 Copy with citationCopy as parenthetical citation