Ex Parte 7486667 et al

Patent Trial and Appeal Board

Mar 21, 2013

95001185 (P.T.A.B. Mar. 21, 2013)

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.
95/001,185 04/30/2009 INV001 7486667 17750/002005 9310
22511 7590 03/21/2013
OSHA LIANG L.L.P.
TWO HOUSTON CENTER
909 FANNIN, SUITE 3500
HOUSTON, TX 77010
EXAMINER
CRAVER, CHARLES R
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
03/21/2013 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
________________

VERIZON LONG DISTANCE LLC
Requester and Appellant

v.

CENTRE ONE
Patent Owner and Appellant
________________

Appeal 2012-007906
Reexamination Control 95/001,185
Patent 7,486,667 B21
Technology Center 3900
________________

Before HOWARD B. BLANKENSHIP, KEVIN F. TURNER, and
STANLEY M. WEINBERG, Administrative Patent Judges.

WEINBERG, Administrative Patent Judge.

DECISION ON APPEAL

1 The patent involved in this reexamination appeal proceeding (the “’667
Patent”) issued to Feuer on February 3, 2009.
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A. STATEMENT OF THE CASE
Introduction
Claim 15 is objected to and patentable. October 1, 2010 Right of
Appeal Notice (RAN) at pp. 10, 27.
Patent Owner Centre One2 appeals under 35 U.S.C. §§ 134(b) and
315(a) the Examiner’s decision to reject claims 1-14 and 16. See Patent
Owner’s October 28, 2010 Notice of Appeal.
Although Requester appealed from the Examiner’s refusal to reject
claims 1-16 on certain bases (See Requester’s November 1, 2010 Notice of
Appeal), Requester did not subsequently file any papers.
On January 9, 2012, Patent Owner requested an Oral Hearing and on
June 27, 2012 waived attendance at the hearing.
We have jurisdiction under 35 U.S.C. §§ 134(b)-(c) and 315(a)-(b).
Related Proceeding
Patent Owner has informed us that there are no other appeals or
interferences that will directly affect, by affected by, or have a bearing on
the Board’s decision in the present appeal. App. Br. 4
Patent Owner has also informed us that the ‘667 Patent is a
continuation of U.S. Patent No. 7,068,668 and that at the time Patent Owner
filed its Appeal Brief in the present inter partes reexamination proceeding,
the ‘668 Patent was under reexamination in Reexamination Control Nos.

2 See Patent Assignment Abstract of Title, Reel 021187 Frame 0640
recorded July 2, 2008 and entered into the record of this proceeding as “Title
Report” on May 4, 2009. Patent Owner incorrectly states that the
Assignment was recorded on May 3, 2006. Appeal Brief (App. Br.) 4. May
3, 2006 was the filing date of Application No. 11/381,417, the application
that resulted in the ‘667 Patent.
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95/001,184 and 95/001,239 and was the subject of litigation in case number
6:2008-cv-467 styled Centre One v. Vonage Holdings Corp. et al., filed on
December 5, 2008, in the United States District Court for the Eastern
District of Texas. App. Br. 4.
The Invention
The invention relates to a method and system for interfacing a public
switched telephone network (PSTN) with an Internet Protocol (IP) network
to provide real-time voice communication and messaging over the two
networks. Col. 1, ll. 24-29.
Claim 1, as amended on August 24, 2009, is representative of the
appealed subject matter and is reproduced below with disputed limitations
emphasized (App. Br. 49, Claims App’x):
1. A method of routing a real-time voice communication call, the
method comprising:
assigning a plurality of predesignated destination addresses to a
subscriber, the destination addresses including an Internet
Protocol (lP) address on the Internet and a base public
switched telephone network (“PSTN”) phone number;
receiving a real-time voice communication call directed to the
subscriber, the received call originating from a device
connected to the Internet;
automatically routing the received call to each of the
predesignated destination addresses; and
determining that the call is not being picked up by the
subscriber and then taking a message for the subscriber
for later delivery to the subscriber in the form of a voice
message, an e-mail message or a facsimile message;
wherein automatically routing the received call to each of the
predesignated destination addresses includes routing the
received call to a gateway located at a destination
address, the gateway being operable for receiving voice
signals from the subscriber’s telephone, packetizing the
voice signals to form packetized digital voice data, and
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transmitting the packetized digital voice data to the IP
network.
The Prior Art
Archer US 6,683,870 B1 Jan. 27, 2004
Jones et al. US 6,404,764 B1 June 11, 2002
The Rejections
The Examiner rejected claims 1-3, 5, 7-14 and 16 under 35 U.S.C.
§112, first and second paragraphs. RAN 10-12.
The Examiner rejected claim 4 under 35 U.S.C. § 102(e) as
anticipated by Archer (RAN 10, 13, 19) adopting the reasons set forth on
pages 26-28 of the Request For Inter Partes Reexamination (Request).
The Examiner rejected claim 6 under 35 U.S.C. § 103(a) as obvious
over Archer in view of Jones (RAN 10, 13, 19) adopting essentially the
reasons set forth on pages 29-30 of the Request.
The Contentions
The August 24, 2009 Amendment to claim 1 recited:
wherein automatically routing the received call to each of the
predesignated destination addresses includes routing the
received call to a gateway located at a destination address, the
gateway being operable for receiving voice signals from the
subscriber’s telephone, packetizing the voice signals to form
packetized digital voice data, and transmitting the packetized
digital voice data to the IP network.

The Rejections Under 35 U.S.C. § 112, first paragraph
1. The Examiner concludes that the description in the ‘667 Patent
fails to comply with the written description requirement because the
description does not provide adequate support for “a gateway located at a
destination address.” RAN 10-11.
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Patent Owner counters that its “gateway 51 is located at a destination
address, the IP address of gateway 51.” App. Br. 21:16-17.
2. The Examiner also concludes that the description in the ‘667
Patent fails to comply with the written description requirement because it
does not provide adequate support for “a real time voice communication
call” as claimed in light of the Amendment. For support, the Examiner finds
that the Specification only describes the gateway as receiving a voice
message but not providing a real time voice communication call. RAN 10-
12.
Patent Owner responds that the Specification does describe real time
voice communication via gateway 51 located at a destination address which
then allows the subscriber to communicate via phone 53. App. Br. 27-30.
The Examiner in turn responds first that gateway 51 is not a
destination address; and second that phone 53 is not discussed as being a
real-time voice call destination via a gateway because phone 53 has neither
PSTN nor IP addresses. Ans. 17:12-17. In addition, even if phone 53 does
provide real-time voice communications through gateway 51, it does not do
so as claimed using a predesignated destination address on either the PSTN
or IP networks. Ans. 17:21-18:2.
The Rejections Under 35 U.S.C. § 112, second paragraph
1. The Examiner concludes that the term “located at a destination
address” is indefinite because the claim describes “destination address” as a
network subscriber’s address such as IP addresses and PSTN phone numbers
and it is unclear how a gateway is located at a network address phone
number which is not a physical address. RAN 12. The Examiner refers to
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paragraph 7 of the Hough Declaration (presented by Requester) as
supporting the conclusion.
Patent Owner contends that incoming calls may be routed
simultaneously to phone 53 through gateway 51 (located at its own
destination address) and to phone 39 connected to PSTN 15 located at a
destination address (i.e., its PSTN phone number). App. Br. 31:6-9.
Apparently implying that gateway 51 and phones 39 and 53 are physical
structures, Patent Owner contends that the term “destination address”
“encompasses both an IP address and a PSTN phone number.” App. Br.
31:9-11.
2. The Examiner also concludes that there is insufficient
antecedent basis for the limitation “the subscriber’s telephone” in claim 1, l.
17 of the Claims Appendix. RAN 12.
Patent Owner does not respond to this conclusion.
The Rejection of Claim 4 Under 35 U.S.C. § 102(e)
The Examiner finds that Archer discloses “the received call is routed
to the Internet Protocol address through the Internet without utilizing a
public switched telephone network” (emphasis added). RAN 19; Request
28.
Patent Owner contends that all of Archer’s embodiments disclose that
a call is routed, at least in part, through the PSTN. App. Br. 35:8-10.
The Rejection of Claim 6 Under 35 U.S.C. § 103(a)
The Examiner finds that Archer and Jones teach “the form of the
message for the subscriber is determined by the subscriber.” RAN 19;
Request 29-30.
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Patent Owner contends that Archer and Jones teach a system which
forwards a call to a secondary group of devices if the call to a primary group
of devices is not picked up. In contrast, Patent Owner contends that its
system requires no such forwarding and therefore allows a subscriber to
receive a message for later delivery as a voice message, an e-mail, or as a
facsimile. Patent Owner also contends that Jones discloses conversions for
received e-mail messages, not voice communications for later delivery.
App. Br. 38-39.
B. ISSUES
1. Under 35 U.S.C. § 112, first paragraph, did the Examiner correctly
conclude that the Specification of the ‘667 Patent does not provide adequate
support for “a gateway located at a destination address” as recited in claim
1?
2. Under 35 U.S.C. § 112, first paragraph, did the Examiner correctly
conclude that the Specification of the ‘667 Patent does not provide adequate
support for “a real-time voice communication call” as recited in claim 1?
3. Under 35 U.S.C. § 112, second paragraph, did the Examiner correctly
conclude that the term “located at a destination address” in claim 1 is
indefinite?
4. Under 35 U.S.C. § 112, second paragraph, did the Examiner correctly
conclude that there is insufficient antecedent basis for the limitation “the
subscriber’s telephone” in claim 1?
5. Under 35 U.S.C. § 102(e), did the Examiner correctly find that Archer
discloses “the received call is routed to the Internet Protocol address through
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the Internet without utilizing a public switched telephone network” as
recited in claim 4?
6. Under 35 U.S.C. § 103(a), did the Examiner correctly find that Archer
in view of Jones teach “the form of the message for the subscriber is
determined by the subscriber” as recited in claim 6?
C. ANALYSIS
The Rejections of Claim 1 Under 35 U.S.C. § 112
A Gateway Located At A Destination Address
When claims are rejected under both the first and second paragraphs
of § 112, any analysis “should begin with the determination of whether the
claims satisfy the requirements of the second paragraph . . . [T]he claims
must be analyzed first in order to determine exactly what subject matter they
encompass.” In re Moore, 439 F.2d 1232, 1235 (CCPA 1971). Rejections
other than § 112 second paragraph rejections should not be based on
speculations and assumptions. In re Steele, 305 F.2d 859, 862-863 (CCPA
1962). Only if it is “determined that the subject matter defined by the claims
is particular and definite, the analysis [may] then turn[] to the first paragraph
of section 112 to determine whether the scope of protection sought is
supported and justified by the specification disclosure.” In re Moore, 439
F.2d at 1235. We therefore turn first to the § 112, second paragraph
rejection of the phrase “a destination address.”
In Patent Owner’s system, “destinations may be on the IP network, on
the PSTN, or on both the IP network and the PSTN.” Col. 5, ll. 1-2. See
App. Br. 19:3-5; 20:10-12. Destination addresses may include the
subscriber’s IP address. App. Br. 20:12-13. Supported by ¶¶ 5 and 6 of the
January 25, 2010 Feuer Declaration, Patent Owner contends that a
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destination address is the IP address of gateway 51, but that phone 53 is not
located at the destination address. App. Br. 20:1-4; 21:4-5, 16-17; 21-23.3
The Examiner concludes that the claimed “destination addresses”
identify the subscriber as the destination of the call, not an intermediary
node in the communication system. Ans. 10:16-17. The Examiner reaches
this conclusion because the claim states that the destination addresses are
predesignated and assigned to a subscriber. Ans. 10-18-19. In response,
Patent Owner contends its Specification supports gateway 51 being a
destination address. Reb. Br. 3-4.
We find that the conflicting interpretations of the claim as well as
inconsistent uses of the term “destination addresses” within the claim itself
prevent both the Examiner and the Board from understanding the metes and
bounds of the claimed “destination addresses.”
Claims Appendix, line 2, recites that “a plurality of predesignated
destination addresses” are assigned to a subscriber. Lines 2-3 recite “the
destination addresses.” It is not clear if “the destination addresses” on lines
2-3 refers back to “a plurality of predesignated destination addresses” on
line 2. Lines 8-9 and 14-15 recite that a call is routed to “each of the
predesignated destination addresses.” Again, the relationship between the
“predesignated destination addresses” on lines 2, 8-9, and 14-15 vs. “the
destination addresses” on lines 2-3 is not clear. Finally, line 16 recites “a
destination address” (emphasis added). It is not clear what “a destination
address” on line 16 describes. One possibility is that it refers to one of the

3 Patent Owner also appears to state that a single IP address (exemplary IP
address 192.168.0.100) can be both the subscriber’s IP address and the
destination address of gateway 51. Compare App. Br. 20:12-13 with App.
Br. 20:22.
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“plurality of predesignated destination addresses” on line 2 that is assigned
to a subscriber, thereby supporting the Examiner’s interpretation of the
claim. Another possibility is that it refers to a destination address not recited
previously in the claim, thereby supporting the Patent Owner’s interpretation
of the claim that it refers to gateway 51.
We are therefore not persuaded that the Examiner erred in rejecting
(1) representative claim 1 under 35 U.S.C. § 112, second paragraph because
“a destination address” is not clear; (2) claim 7 for similar reasons; and (3)
claims 2, 3, 5, 8-14, and 16 not separately argued with particularity. App.
Br. 31.
Accordingly, we will sustain the Examiner’s rejection of claims 1-3,
5, 7-14, and 16 under § 112, second paragraph.
The Subscriber’s Telephone
Because Patent Owner does not reply to this ground of rejection, we
summarily affirm the rejection of claims 1-3, 5, and 14 on this ground as
well.
The Rejection Under 35 U.S.C. § 112, first paragraph
Having sustained the rejections of claims 1-3, 5, 7-14, and 16 as
indefinite, we do not reach the merits of the rejections under 35 U.S.C.
§ 112, first paragraph. We will not speculate as to the meaning of the claim
limitations that render the claims indefinite nor rely on assumptions as to the
scope of the claims. In re Moore, supra. We therefore do not sustain the
Examiner’s rejections under § 112, first paragraph and pro forma reverse.
Accordingly, the rejections of claims 1-3, 5, 7-14, and 16 under 35
U.S.C. § 112, first paragraph are reversed.
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The Rejection of Claim 4 Under 35 U.S.C. § 102(e)
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). “[U]nless a reference discloses within the four corners
of the document not only all of the limitations claimed but also all of the
limitations arranged or combined in the same way as recited in the claim, it
cannot be said to prove prior invention of the thing claimed and, thus, cannot
anticipate under 35 U.S.C. § 102.” Net MoneyIN, Inc. v. VeriSign, Inc., 545
F.3d 1359, 1371 (Fed. Cir. 2008). “[T]he [prior art] reference must clearly
and unequivocally disclose the claimed [invention] or direct those skilled in
the art to the [invention] without any need for picking, choosing, and
combining various disclosures not directly related to each other by the
teachings of the cited reference.” Net MoneyIN, , 545 F.3d at 1371, quoting
In re Arkley, 455 F.2d 586, 587 (CCPA 1972).
Patent Owner contends that Archer does not anticipate “wherein the
received call is routed to the Internet Protocol address through the Internet
without utilizing a public switched telephone network” because every
embodiment of Archer purportedly discloses that initiating device 114
initiates a call to one of the receiving devices, telephone 120 or computer
134, using PSTN 136. App. Br. 34:9-11; 35:3-14.
The Examiner, however, finds that Archer discloses a modified Figure
2 that meets the contested limitation. Citing Archer col. 8, ll. 12-17, the
Examiner finds that Archer’s destination computer 134a is connectable to a
packet switched network directly through a cable modem, ASDL or a T1
line as opposed to a PSTN. Ans. 21:4-9. We agree.
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Discussing its Figure 2, Archer first discloses an embodiment that
uses circuit-switched network 136 when a user does not have direct access to
a packet-switched network. Archer col. 7, l. 65-col. 8, l. 11. Archer then
discusses an alternative embodiment of Figure 2 where destination computer
134a “could be coupled to a packet-switched network 130 through a cable
modem, a wireless link (e.g., satellite or cellular), a connection through a T1
line, a digital subscriber line (e.g., ADSL), or even power lines.” Archer
col. 8, ll. 12-17.
Citing Archer col. 10, ll. 24-36 and Figure 6, the Examiner next finds
that Archer specifically discloses that the originating device in Figure 2 may
be connected directly to the packet-switched network instead of through a
PSTN. We agree.
Archer discloses that Figure 6 presents a number of modifications, all
or some of which can be combined with the system shown in Figure 2.
Archer col. 10, ll. 24-26. As a first modification, Archer discloses that
initiating device 114 can be a computer workstation or terminal illustrated in
Figure 6 “which only allows access to network 130 (e.g., WebTV).” Col. 10,
ll. 31-36 (emphasis added). Explaining further, Archer discloses that
computer 114 can be connected to packet-switched network 130 in a number
of ways, such as a modem, cable modem, wireless link, T1 line connection,
ADSL, or power lines. Archer col. 10, ll. 37-42.
Based on the above findings, the Examiner finds that Archer discloses
an embodiment where both the originating device 114 and the subscriber
134 may both be directly connected to a packet switched network and that
these direct connections thereby results in Archer disclosing all of the
limitations of claim 4. Ans. 21:14-22:5. We agree.
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Patent Owner’s Rebuttal Brief does not persuasively rebut the
Examiner’s findings. Citing Archer col. 4, l. 66-col. 5, l. 4, Patent Owner
contends that the Examiner has misquoted Archer because the cited portion
of Archer discusses an embodiment where telephone 114 is connected to a
circuit-switched network. Patent Owner does not, however, refute or
otherwise discuss the Examiner’s specific findings that rely on specific
Archer citations regarding Archer’s disclosure of the modified Figure 2
relied upon by the Examiner.
Based on our agreement with the Examiner’s findings, we will sustain
the Examiner’s rejection of claim 4.
The Rejection of Claim 6 Under 35 U.S.C. § 103(a)
Claim 6 recites, in part:
determining that the call is not being picked up by the
subscriber and then taking a message for the subscriber for later
delivery to the subscriber in the form of a voice message, an e-
mail message or a facsimile message;

wherein the form of the message for the subscriber is
determined by the subscriber.
The Examiner, via the Request, finds that Archer teaches that when
none of the destination addresses of the callee/subscriber answers a call, the
caller is forwarded to a series of secondary addresses for a connection. If
none of the secondary addresses answer, then the caller may be forwarded to
voicemail. Request 27, 29, citing Archer col. 9, ll. 38-50.
Patent Owner contends that Archer’s forwarding a call to a group of
secondary devices does not provide a subscriber with an option to elect to
receive a message for later delivery as a voice message, an e-mail, or as a
facsimile. App. Br. 39:3-6.
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The Examiner concludes, however, that Archer’s sending a call to
voicemail teaches “in the form of a voice message, an e-mail message or a
facsimile message.” Ans. 23:4-9.
We agree with the Examiner. This contested aspect of claim 6 is
written in the alternative: “taking a message. . .for later delivery. . .in the
form of a voice message, an e-mail message, or a facsimile message.”
Archer meets this alternative limitation because, as indicated, Archer sends a
call to voicemail.
The Examiner, again via the Request, finds that Archer teaches that
the subscriber can control the form of the message left for the subscriber
because Archer’s final group of devices at which a subscriber can be called
includes a pager and/or voicemail. Request 29, citing Archer col. 9, ll. 48-
50. The Examiner also finds that Archer discloses allowing the user to
modify the list of receiving devices and that the user may select which
devices go in which group; i.e., primary (phone) and secondary (pager, voice
mail). Ans. 23:11-14.
Patent Owner argues that if none of Archer’s destination devices 120,
134 respond, the caller can be forwarded to a secondary group of devices
including voice mail. App. Br. 38:20-23, citing Archer col. 9, ll. 38-40.
Because of the forwarding, Patent Owner contends, the subscriber has no
option to elect to receive a message for later delivery as a voice message, an
e-mail, or as a facsimile. App. Br. 39:3-6. In addition, Patent Owner
contends its Specification teaches a system that requires no such forwarding
and allows a subscriber to receive incoming calls simultaneously at a
plurality of numbers pre-programmed into Patent Owner’s system. Patent
Owner’s system allows a subscriber to choose the destinations of a call or
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message without requiring forwarding between primary and secondary
groups of devices. Reb. Br. 5-6.
We agree with the Examiner. Patent Owner’s arguments regarding
Archer’s use of forwarding are not persuasive because claim 6 does not
expressly eliminate forwarding to voice mail and Patent Owner has not
shown that delivery to voice mail without forwarding is an implicit
requirement of claim 6.
The Examiner, again via the Request, finds that Jones discloses a
VoIP telephone system that provides a callee user with options including
translation of the contents of an e-mail message into a voice message,
conversion of a voice message to an e-mail message, and conversion of a
facsimile to an e-mail message. Request 29-30, citing Jones col. 7, l. 16-col.
8, l. 11. The Examiner also finds that Jones teaches that the format of the
message and other features of the system are options that may be configured
by the user. Request 30.
Citing Jones col. 7, ll. 15-23, Patent Owner contends that Jones
discloses receiving an e-mail communication as either a voice message or a
fax, not receiving a voice communication, thereby disclosing only various
conversions for e-mails (App. Br. 39:13-21) and not teaching receiving a
voice communication for later delivery to a subscriber in a form dictated by
the subscriber as required by claim 6. App. Br. 39:21-23.
The Examiner, citing Jones col. 7, ll. 37-68, finds that Jones does
teach that a voice message may be converted to an e-mail message. Ans.
23:17-24:2. The Examiner further finds that Patent Owner’s citation to
Jones col. 7, ll. 15-23 relates only to e-mail messages, not voice mails. Ans.
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24. Patent Owner does not respond to these latter findings. We find that the
Examiner’s findings have a rational underpinning and we agree with them.
Patent Owner’s other contentions are not persuasive because Patent
Owner recites or paraphrases the claim language without explaining why the
Examiner’s citation to Archer fails to support the rejection. App. Br. 37:16-
21; 40:1-9. See 37 C.F.R. § 41.67(c)(1)(vii) (noting that an argument that
merely points out what a claim recites is unpersuasive). Accord, In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted
Rule 41.37 to require more substantive arguments in an appeal brief than a
mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art.”)
Accordingly, we will sustain the Examiner’s rejection of claim 6.
CONCLUSIONS
Under § 112, second paragraph, the Examiner did not err in rejecting
claims 1-3, 5, 7-14, and 16. Under § 112, first paragraph, the Examiner did
err in rejecting claims 1-3, 5, 7-14, and 16. Even though we have pro forma
reversed the rejections of claims 1-3, 5, 7-14, and 16 under § 112, first
paragraph, those same claims nevertheless remain rejected under § 112,
second paragraph.
Under § 102, the Examiner did not err in rejecting claim 4. Under
§103, the Examiner did not err in rejecting claim 6.

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DECISION
The Examiner’s decision rejecting claims 1-14 and 16 is affirmed.
Requests for extensions of time in the inter partes reexamination
proceeding are governed by 37 C.F.R. §§ 1.956 and 41.77(g).

AFFIRMED

PATENT OWNER:

OSHA – LIANG LLP
900 FANNIN ST.
SUITE 3500
HOUSTON, TX 77010

THIRD-PARTY REQUESTER:

COVINGTON & BURLING LLP
1201 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, DC 20004-2401