Ex Parte Schultz et alDownload PDFPatent Trial and Appeal BoardJan 29, 201512256664 (P.T.A.B. Jan. 29, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PAUL T. SCHULTZ, ROBERT A SARTINI, and MARTIN W. MCKEE ____________________ Appeal 2012-009443 Application 12/256,664 Technology Center 2100 ____________________ Before ROBERT E. NAPPI, BRUCE R. WINSOR, and JAMES W. DEJMEK, Administrative Patent Judges. DEJMEK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-009443 Application 12/256,664 2 Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1–24. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE Introduction Appellants’ invention is directed to an approach “for creating a workspace for automatically logging and storing heterogeneous communication sessions and for accessing this workspace from a user- designated environment.” Abstract. Representative claims 1 and 4 on appeal are reproduced below with the disputed limitations emphasized in italics: 1. A method comprising: creating a workspace for a user; logging a plurality of heterogeneous communication sessions conducted by the user as a communication activity log; and storing the log within the workspace for access by the user. 4. A method of claim 1, further comprising: detecting establishment of one of the communication sessions; recording the one communication session based on the detection; and storing the recorded communication session in the workplace. Appellants’ Contentions 1. Appellants contend the “Weblogs” disclosed by Moore are not communication activity logs of heterogeneous communication sessions by the user. App. Br. 6–8; Reply Br. 2–4. Appeal 2012-009443 Application 12/256,664 3 2. Appellants further contend that Moore does not teach or suggest detecting and recording the communication sessions of the claimed invention. App. Br. 9. Issues on Appeal 1. Did the Examiner err in finding Moore teaches or suggests “logging a plurality of heterogeneous communication sessions conducted by the user as a communication activity log,” as recited in claim 1? 2. Did the Examiner err in finding Moore teaches or suggests the detection and recording of communication sessions as recited in dependent claim 4? References The prior art relied upon by the Examiner in rejecting the claims on appeal is: Han et al. (“Han”) US 2002/0143819 A1 Oct. 3, 2002 Moore et al. (“Moore”) US 2007/0061266 A1 Mar. 15, 2007 The Examiner’s Rejections Claims 1–24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Moore and Han. Ans. 4–9. Appeal 2012-009443 Application 12/256,664 4 ANALYSIS1 Appellants argue the rejection of independent claims 1, 12, and 23 under 35 U.S.C. § 103(a) collectively. App. Br. 5–9. Appellants also argue the rejection of dependent claim 4. Id. at 9. Separate patentability is not argued for claims 2–3, 5–11, 13–22, and 24. “A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.” 37 C.F.R. § 41.37(c)(1)(vii) (2010). Further, merely restating with respect to a second claim an argument, previously presented with respect to a first claim, is not an argument for separate patentability of the two claims. Therefore, based on Appellants’ arguments, we decide the appeal of claims 1–3, and 5–24 based on claim 1 alone. See id. Claim 4 is addressed separately. Claim 1 Appellants argue that the Examiner erred in “equat[ing] the claimed ‘communication activity logs’ of user ‘heterogeneous communication sessions’ with the ‘Weblogs’ of Moore’s system.” App. Br. 6. Appellants summarize the “Weblogs” presented in paragraph 274 of Moore (cited by the Examiner) as an aggregation of feeds from various sources made available through a single web site. Id. at 7. Appellants contend the data feeds of Moore “consist[] of a one way feed of information (e.g., news, technical information, political commentary, etc.) generally from a web source.” Id. Appellants further contend that the Weblogs of Moore would 1 Throughout this opinion we refer to the Appeal Brief dated February 10, 2012, the Reply Brief dated May 30, 2012, and the Examiner’s Answer mailed on April 27, 2012. Appeal 2012-009443 Application 12/256,664 5 not be understood by one of ordinary skill in the art as communication activity logs of communication sessions by the user, as recited in claim 1, because “a ‘session’ implies more than one party doing the sending, i.e., a communication session implies a two-way conversation.” Id.; Reply Br. 3. Appellants argue, “one of ordinary skill in the art would understand that the ‘communication sessions’ of the present claims correspond to interactive information interchanges (e.g., conversations or conferences) between two or more communicating devices, each of which is established at a certain point in time and terminated at a later point in time.” App. Br. 7. As such, Appellants conclude that the communication activity logs of claim 1 cannot reasonably be interpreted as being equivalent to (or obvious in view of) the Weblogs of Moore. Id. Additionally, Appellants contend the data feeds of Moore are not “conducted by the user” as required by the claim language. Id. at 8. Appellants argue: because Moore’s weblogs are data feeds that are simply aggregated from multiple sources (for example, web sites provided by many individuals or entities), where the user is not engaged in a communication session with each such source (individual or entity), the weblogs cannot constitute “heterogeneous communicate sessions conducted by the user as a communication activity log,” as recited in independent claim 1. Id. We have considered Appellants’ arguments. As set forth infra, we are unpersuaded of Examiner error. The Examiner finds that Moore discloses logging a plurality of heterogeneous communication sessions conducted by the user as a Appeal 2012-009443 Application 12/256,664 6 communication activity log. Ans. 5, 9–12. We agree. As set forth in the Specification, “heterogeneous communications” are “related communication sessions that take place in many different forms over different communication devices.” Spec. ¶ 1 (emphasis added). Examples of communication sessions identified within the Specification include: voice communication, text-based communication, video communication, multimedia conferencing, or a combination thereof. Id. ¶¶ 23–24. In paragraph 274, Moore describes a consumer-to-consumer model 306 wherein individual bloggers are “mostly communicating with each other.” Moore ¶ 274; Ans. 5. Moore goes on to state the “source in this space is an individual presenting aggregated feeds 302 in a Web site with some common theme or themes of interest” and that, for non-commercial Weblogs, “individuals aggregate data feeds 302 from a variety of sources and include editorial commentary or other information.” Id. ¶ 274. We note that Moore also identifies multiple examples of communication devices that may act as a client device within the disclosed system. See, e.g., Id. ¶ 213 (“Although the personal computer is a typical client 102, the client 102 may also be a workstation, mobile computer, Web phone, VOIP device, television set-top box, interactive kiosk, personal digital assistant, wireless electronic mail device, or other device capable of communicating over the Internet.”). In response to Appellants’ arguments, the Examiner further identifies paragraph 635 of Moore for its disclosure. Ans. 10–12. In relevant part, paragraph 635 states “legacy facility 7402 is a legacy e-mail client, [and] the interface 7400 may convert the message or series of messages from the legacy facility 7402 and publish it in an RSS feed.” Moore ¶ 635. Within Appeal 2012-009443 Application 12/256,664 7 this same paragraph, Moore teaches and suggests outgoing email transmitted by the legacy facility 7402 to intended recipients (on the “to:”, “cc:”, or “bcc:” lines) may be received by interface 7400 and published to the RSS feed. Id. E-mail communication falls within the scope of the “heterogeneous communication sessions conducted by the user.” See, e.g., Spec. ¶ 1. Moore further discloses a list of other communication sessions that may be logged. For example, in an enterprise, the DS-DBMS 7700 may be used to track working versions of documents such as e-mail, calendars, contacts, to-do items, organizational charts, presentations, Web pages, data feeds 202, outlines, spreadsheets, word processing files, diagrams, software code, access control lists, financial data, images, videos, audio files, URLs, and so forth. Moore ¶ 654. Accordingly, on the record before us, we find that Moore discloses logging a plurality of heterogeneous communication sessions conducted by the user as a communication activity log, as recited in claim 1. In their Reply Brief, Appellants argue Han does not teach storing a log with the workspace for access by the user. Reply Br. 3. Appellants first raise this argument in the Reply Brief. This argument was not in response to a new issue brought up by the Examiner in the Answer and, to be considered, should have been raised in the Appeal Brief, and therefore is untimely and deemed waived. Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner’s rejections, but were not.”). Were we to automatically consider such newly raised arguments, “[r]ather than reviewing a record for error, the Board would be considering, in the first Appeal 2012-009443 Application 12/256,664 8 instance, findings of fact proposed by the Appellant, but not weighed by the Examiner [in the Examiner’s Answer] against the other evidence of record.” Borden, 93 USPQ2d at 1475. Appellants further contend that the Examiner failed to provide a proper rationale for obviousness. App. Br. 5; Reply Br. 3–4. Appellants’ contentions merely repeat the contentions discussed supra (see Reply Br. 3), allege impermissible hindsight (see Reply Br. 4), and assert generally that the Office’s burden has not been met (App. Br, 5). Appellants’ contentions do not address the specific findings and conclusions articulated by the Examiner to support the conclusion of obviousness. (See Ans. 5.) Therefore, we are not persuaded by Appellants’ arguments. We agree with the Examiner’s rationale and findings as found in the Answer (see id.) and we adopt them as our own without repeating them herein. For the reasons supra, we sustain the Examiner’s rejections of claims 1–3 and 5–24. Claim 4 Regarding dependent claim 4, Appellants argue that the paragraphs of Moore cited by the Examiner “bear no relation to communication services, as presently claimed, much less any capability to detect and record these communication sessions.” App. Br. 9. We disagree. In paragraph 544, Moore lists a variety of features and capabilities that may be present in certain security devices (e.g., fingerprint recognition, security systems, access control devices, and digital rights management (DRM)). Moore ¶ 544. Moore further teaches and suggests these devices may be modified to be syndication-capable devices and “[t]he syndication-capable security Appeal 2012-009443 Application 12/256,664 9 device may be adapted to publish RSS data or information to a LAN, WAN, or Internet by wired or wireless communication or by communication through another device.” Id. ¶ 545. Moore presents several scenarios wherein the syndication-capable security devices detect and record a communication session in response to a triggering event. Id. ¶¶ 546–554. Additionally, paragraph 635 of Moore, also cited by the Examiner (Ans. 10–13)2 is instructive on this point. Moore teaches and suggests subscribing to RSS feeds such as a “sent mail” or “received mail” feed. Moore ¶ 635. As such, when a new email is sent (or received), the email communication session is detected. Id. (“The S-DBMS 7200 may subscribe to this feed and may appropriately react to changes in the feed. . . . The S- DBMS 7200 may have subscribed to the ‘sent mail’ RSS feed 202 of the interface 7400 and may recognize a published update to this feed.”). As described above, the email message or messages may be converted and published as part of the feed (i.e., recorded and stored). Id. Appellants further contend that paragraph 67 of Moore “cited for the claimed storing step has no nexus to the functions of these security devices [of Moore ¶ 544].” App. Br. 9. While we agree with the Appellants on this point, we find Moore’s statement of publishing email messages as part of the updated RSS feed in paragraph 635 necessarily teaches and suggests storing the email communication session for inclusion as part of the feed. For the reasons supra, we sustain Examiner’s rejection of claim 4. 2 In responding to Appellants’ argument regarding claim 4, the Examiner states “[a]s explained above, Moore in paragraph [0636] discloses detecting communication sessions, recording communication session[s] and storing communication session[s] in the work space.” Ans. 12. The Examiner had previously relied on paragraph 635 of Moore (not paragraph 636). Appeal 2012-009443 Application 12/256,664 10 CONCLUSION We are not persuaded the Examiner erred in rejecting claims 1–3 and 5–24 by concluding the combination of Moore and Han teaches or suggests the disputed limitations of those claims. We are not persuaded the Examiner erred in rejecting claim 4 by concluding the combination of Moore and Han teaches or suggests the disputed limitations of the claim. DECISION The rejection of claims 1–24 under 35 U.S.C. § 103(a) is affirmed. 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) (2011). AFFIRMED msc Copy with citationCopy as parenthetical citation