Holder, Louis et al.

Patent Trials and Appeals Board

Dec 4, 2020

2019004119 (P.T.A.B. Dec. 4, 2020)

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

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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.)
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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).
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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
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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
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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.
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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

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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