Ex Parte MichaelisDownload PDFPatent Trial and Appeal BoardMar 23, 201813490702 (P.T.A.B. Mar. 23, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/490,702 06/07/2012 48500 7590 03/27/2018 SHERIDAN ROSS P.C. 1560 BROADWAY, SUITE 1200 DENVER, CO 80202 FIRST NAMED INVENTOR Paul Roller Michaelis 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. 4366-545 3333 EXAMINER TRAN,PABLON ART UNIT PAPER NUMBER 2649 NOTIFICATION DATE DELIVERY MODE 03/27/2018 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): cjacquet@sheridanross.com pair_Avaya@firsttofile.com edocket@sheridanross.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAUL ROLLER MICHAELIS Appeal2017-008445 Application 13/490,702 1 Technology Center 2600 Before ROBERT E. NAPPI, JOHN P. PINKERTON, and SCOTT E. BAIN, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's Non-Final Rejection of claims 1--4, 6-9, 11, 12, 14--16, 18-20, 22, and 23, which constitute all the claims pending in the application. Claims 5, 10, 13, 17, and 21 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellant identifies Avaya Inc. as the real party in interest. App. Br. 2. Appeal2017-008445 Application 13/490,702 STATEMENT OF THE CASE The Claimed Invention Appellant's invention relates to providing a "tactile indication" (such as vibration of a phone) indicating transmission "quality impairments" in a cellular communication between devices, such as a phone call between mobile phones. Spec. 1. Specifically, the invention is directed to a "second" device detecting a harmful acoustic factor in a "first" device during communication between the devices (such as the user of the first device speaking too loudly into the microphone, or an echo or background noise around the microphone), and notifying the user of the first device of the impairment. Id. at 1-2. Claims 1, 12, and 16 are independent. Claim 1 is illustrative of the invention and the subject matter of the appeal, and reads as follows (with disputed limitations emphasized): 1. A method for providing an alert to a user of a first communication device, comprising: detecting a transmission impaired condition observed by a second communication device, wherein the first communication device is a communication endpoint that includes a display and wherein the transmission impairment comprises an acoustic signal associated with an audio input received by a microphone of the first communication device; determining that the user of the first communication device should be alerted to the detected condition; determining that the display is not in view of the user of the first communication device, wherein a tactile alert is generated after determining that the display is not in view of the user of the first communication device; after generating the tactile alert, receiving input from the user of the first communication device; and 2 Appeal2017-008445 Application 13/490,702 in response to the received input, providing information identifying the detected condition. App. Br. 8 (Claims App'x) (emphases added). The Rejection on Appeal Claims 1--4, 6-9, 11, 12, 14--16, 18-20, 22, and 23 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Meloche et al. (US 8,483,679 B2; iss. July 9, 2013) ("Meloche"). Non-Final Act. 2-5. ANALYSIS We have reviewed the Examiner's rejection in light of Appellant's arguments presented in this appeal. Arguments which Appellant could have made but did not make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). On the record before us, we are not persuaded the Examiner erred. We adopt as our own the findings and reasons set forth in the rejection from which the appeal is taken and in the Examiner's Answer, and provide the following discussion for highlighting and emphasis. Appellant argues the Examiner erred in finding Meloche teaches or suggests detecting a transmission impairment condition "observed by a second communication device" and determining "the user of [a] first communication device should be alerted" to the detected condition, as recited in claim 1. 2 App. Br. 6-7 (emphases added). According to Appellant, the Examiner finds Meloche (the sole reference relied upon) teaches both end user devices in communication experience the "impaired 2 Appellant argues all claims on appeal as a group (App. Br. 7), and we choose claim 1 as representative of the group. 37 C.F.R. 41.37(c)(iv). 3 Appeal2017-008445 Application 13/490,702 communication condition." Id. Appellant contends this teaching contradicts claim 1, which is directed to an impairment "not experienced by both devices equally," but rather to an impairment originating in one device, such as "when one user is speaking too loud." App. Br. 6 (emphasis added). We, however, are not persuaded. First, as the Examiner observes, the language of claim 1 does not recite whether an impairment is "experienced by both devices equally," as Appellant argues. Ans. 3. Rather, as set forth above, claim 1 recites a second device observes the impairment condition, and thereafter the first device "should be alerted" to the condition. App. Br. 8. Thus, Appellant's argument that Meloche teaches both end users experiencing an impairment does not advance Appellant's argument of Examiner error. Second, as the Examiner finds, Meloche teaches a second communication device observing a transmission impaired condition (Ans. 3 (citing Meloche col. 1, 11. 36-45)) and alerting the first communication device of the impairment (Ans. 4 (citing Meloche col. 8, 11. 1-11)). See also Meloche Fig. 3 (diagram illustrating impairment detection and notification between two devices in communication), col. 6, 11. 42--45, col. 8, 11. 20-32; Non-Final Act. 2-3. Appellant does not explain any alleged error in these findings, and we discern no error therein. In the Reply Brief, Appellant argues that even if Meloche teaches a second device detecting a transmission impairment and notifying the first device, the impairment detected in Meloche is not "an acoustic signal associated with an audio input received by a microphone of the first communication device," as recited in claim 1. Reply Br. 3. This newly raised argument (not responsive to any new findings in the Answer), 4 Appeal2017-008445 Application 13/490,702 however, is waived as untimely (37 C.F.R. § 41.41(b)(2)). Even if our reviewing court were to find it was timely raised, we would find the argument to be unpersuasive because the "BACKGROUND" of Appellant's own Specification indicates that "excessively loud speaking, echo, and background sounds" (i.e., all acoustic impairments) were impairments known in the art. Spec. 1; Non-Final Act. 3. For the foregoing reasons, we are not persuaded the Examiner erred. Accordingly, we sustain the obviousness rejection of claims 1--4, 6-9, 11, 12, 14--16, 18-20, 22, and 23. DECISION We affirm the Examiner's decision rejecting claims 1--4, 6-9, 11, 12, 14--16, 18-20, 22, and 23. 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). See 37 C.F.R. § 41.50(f). AFFIRMED 5 Copy with citationCopy as parenthetical citation