Sagi Iltus et al.

Patent Trials and Appeals Board

Sep 30, 2019

14609654 - (D) (P.T.A.B. Sep. 30, 2019)

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.
14/609,654 01/30/2015 Sagi Iltus V293 6958
72623 7590 09/30/2019
MOSER TABOADA / VONAGE HOLDINGS CORP.
1030 BROAD STREET
SUITE 203
SHREWSBURY, NJ 07702
EXAMINER
LIN, WILL W
ART UNIT PAPER NUMBER
2412
NOTIFICATION DATE DELIVERY MODE
09/30/2019 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):
docketing@mtiplaw.com
llinardakis@mtiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SAGI ILTUS and ELI BIRGER
____________________

Appeal 2018-009191
Application 14/609,654
Technology Center 2400
____________________

Before ST. JOHN COURTENAY III, LARRY J. HUME, and
PHILLIP BENNETT, Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant,1 Sagi Iltus, et al., appeals
from the Examiner’s decision rejecting claims 1–23, which are all claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word “Appellant” to refer to “Applicants” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Vonage
Network LLC. App. Br. 3.
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STATEMENT OF THE CASE2
The Invention
Appellant’s disclosed and claimed inventions relate to “to systems and
methods for buffering and playback of audio when recovering from a
dropped or redirected telephone conversation.” Spec. ¶ 1.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphases added to contested limitations):
1. A computer implemented method for replaying
buffered audio of a telephone call via a media relay,
comprising:
buffering, by the media relay, audio data associated with
a telephone call when the media relay detects that a quality of
an established data connection decreases below a first threshold
quality measure;
playing, by the media relay, the buffered audio data from
a buffer;
determining, by the media relay, that the quality of the
established data connection exceeds a second threshold quality
measure; and
replaying, by the media relay, the audio data from the
buffer, wherein replaying the audio comprises modifying a
playback rate of the buffered audio data during playback.

2 Our Decision relies upon Appellant’s Appeal Brief (“App. Br.,” filed
April 16, 2018); Examiner’s Answer (“Ans.,” mailed July 26, 2018); Final
Office Action (“Final Act.,” mailed Mar. 30, 2017); and the original
Specification (“Spec.,” filed Jan. 30, 2015).
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Prior Art
Chen et al. (“Chen”) US 6,665,751 B1 Dec. 16, 2003
Salomons US 2007/0143800 A1 June 21, 2007
Lingafelt et al. (“Lingafelt”) US 8,331,545 A1 Dec. 11, 2012
Rosenberg US 2016/0182191 Al June 23, 2016
Rejections on Appeal
R1. Claims 1–3, 7–10, 12–14, 18–21, and 23 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the combination of Rosenberg
and Lingafelt. Final Act. 3.
R2. Claims 4–6 and 15–17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Rosenberg, Lingafelt, and
Chen. Final Act. 17.
R3. Claims 11 and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Rosenberg, Lingafelt, and
Salomons. Final Act. 22.
CLAIM GROUPING
Based on Appellant’s arguments (App. Br. 6–10), we decide the
appeal of obviousness Rejection R1 of claims 1–3, 7–9, 12–14, 18–20,
and 23 on the basis of representative claim 1. We address separately argued
claims 10 and 21, infra. We address remaining claims 4–6, 11, 15–17,
and 22 in obviousness Rejections R2 and R3, not argued separately, infra.3

3 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
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ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments
Appellant could have made, but chose not to make in the Briefs so that we
deem any such arguments as waived. 37 C.F.R. § 41.37(c)(1)(iv).
As discussed below, we agree with particular arguments Appellant
made with respect to claims 10 and 21. However, we disagree with
Appellant’s arguments with respect to claim 1 and claims grouped therewith,
and we incorporate herein and adopt as our own: (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer
in response to Appellant’s arguments. We incorporate such findings,
reasons, and rebuttals herein by reference unless otherwise noted. We
highlight and address specific findings and arguments regarding claims as
follows.
1. § 103 Rejection R1 of Claims 1–3, 7–9, 12–14, 18–20, and 23
Issue 1
Appellant argues (App. Br. 6–10) the Examiner’s rejection of
independent claim 1 under 35 U.S.C. § 103 as being obvious over the
combination of Rosenberg and Lingafelt is in error. These contentions
present us with the following issue:

In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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Did the Examiner err in finding the cited prior art combination teaches
or suggests “[a] computer implemented method for replaying buffered audio
of a telephone call via a media relay,” because the prior art combination
allegedly does not teach or suggest use of a “media relay,” within the
meaning of claim 1 (emphasis added)?
Analysis
Regarding the disputed limitations of claim 1, Appellant contends
“[t]he buffer servers of Rosenberg are not the media relays of Appellant[’s]
independent claim 1.” App. Br. 6.
Appellant further argues:
[A] media relay is a term of art and identifies a specific piece of
equipment in an IP telephony system. In fact, the USPTO has
established the term "media relay" as well known in the art as to
its form and function. Specifically, U.S. Patent No. 7796620B2,
filed March 20, 2008 and titled, “Method, Terminal, and
MediaRelay for Establishing a Multi-Media Connection”,
defines such form and function. In addition, Appellant[’s]
Specification frames what a media relay is and what is does.
Id.
Appellant alleges that Rosenberg’s “buffer server is NOT the media
relay of an IP telephony system, but rather a specific additional piece of
equipment dedicated to buffering VoIP packets for a specific client device.”
App. Br. 7. Appellant further contends, “[i]n the cited art, the buffer servers
are not the media servers of Appellant[’s] invention. The buffer servers do
not receive call setup signaling and therefore are not the media servers of an
IP telephony network, nor are they the media servers of Appellant[’s]
invention.” App. Br. 8.
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We are not persuaded by Appellant’s arguments. Contrary to
Appellant’s contentions, the cited sections of the Specification do not
provide an explicit definition of the claim term “media relay,” a term we
note was added to the claims during prosecution. To the contrary,
Appellant’s Specification merely describes their invention as “replaying
buffered audio” (Spec. ¶ 4) including an “audio buffering module.” Spec.
¶ 5; see also Spec. ¶¶ 6, 15, 44, 47, 49.4 We are not persuaded by
Appellant’s arguments because they do not point to an explicit definition of
the disputed “media relay” that would render the Examiner’s claim
construction overly broad, unreasonable, or inconsistent with the
Specification.5 Under the broadest reasonable interpretation standard,
despite Appellant’s argument, we conclude that Rosenberg’s buffering and
buffer server is not precluded from the scope of the disputed claim term
“media relay” of claim 1.6 Ans. 7–8, citing Rosenberg, Fig. 4, par. 35, 43.
We agree with the Examiner’s factual findings and legal conclusion
that “[f]undamentally, the issues [in] question hinge[] on the claim
interpretation of media relay” (Ans. 3) and, “[b]ased on the interview record
and the prosecution record, applicant/appellant interprets the media relay as

4 Appellant cites the Specification for support of the “buffering, by the
media relay,” and “playing, by the media relay” limitations. App. Br. 3
(citing Spec. ¶¶ 4, 15, 41–43, 48) (“SUMMARY OF CLAIMED SUBJECT
MATTER”).
5 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
6 We give the claims their broadest reasonable interpretation consistent with
the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
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a well understood term have well understood definition in the art . . . . [as
well as in] the appeal brief, the applicant/appellant’s interpretation is wholly
based on functional language.” Id. We agree with the Examiner’s
interpretation because, for example, the Specification discloses “a method
for replaying buffered audio of a telephone call, comprises buffering audio
data associated with a telephone call when a quality of an established data
connection decreases below a first threshold quality measure.” Spec. ¶ 4.
Moreover, we are also not persuaded by Appellant’s citation to Patent
No. 7,796,620 B2 to Elwell, because this reference does not provide an
explicit definition of the disputed “media relay” term.7
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner’s reading of
the contested limitations on the cited prior art.
Therefore, we sustain the Examiner’s obviousness rejection of
independent claim 1, and grouped claims 2, 3, 7–9, 12–14, 18–20, and 23,
which fall therewith. See Claim Grouping, supra.
2. Obviousness Rejection R1 of Claims 10 and 21
Claim 10 recites:
The method of claim 1, wherein the buffer size is based
on historic disconnection statistics at a current location and
based on telemetry data including at least one of call duration,
average quality, packets lost, whether a call was disconnected
and reconnected, or a reconnection time.
Claims App’x (emphasis added).8

7 Although not presented during prosecution, we have reviewed the Elwell
reference and attach a Form PTO-892 to enter this reference in the record.
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Appellant argues the cited references do not teach or suggest the
disputed limitation “wherein a buffer size is based on historic disconnection
statistics at a current location,” as recited in dependent claims 10 and 21.
App. Br. 10. Specifically, Appellant argues:
Rosenberg and Lingafelt are silent as to determining a buffer
size. As such, Rosenberg and Lingafelt are further silent with
respect to using any type of historic disconnection statistics and
further fail to discuss calculating a buffer size. Rosenberg and
Lingafelt teach buffering based on current packet loss between
a client device and its buffer server. As such, the cited art,
neither alone nor in combination teaches determining a buffer
size based on historic disconnection statistics at a current
location.
Id.
The Examiner finds Rosenberg teaches this limitation. Final Act. 8,
citing Rosenberg Fig. 4, par. 35. In response to Appellant’s arguments, the
Examiner notes that “determining a buffer size” is not recited in the rejected
claims. Ans. 6.
We find Appellant’s arguments persuasive. We disagree with the
Examiner because we do not find the cited portions of Rosenberg teach or
suggest the disputed limitation of “the buffer size is based on historic
disconnection statistics at a current location.” Claim 10.
Therefore, for essentially the same reasons argued by Appellant, we
reverse the Examiner’s rejection R1 of dependent claims 10 and 21.

8 In the event of further prosecution, we invite the Examiner’s attention as
to whether the recitation in claim 10 of “the buffer size” has proper
antecedent basis under 35 U.S.C. § 112(b).
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3. Rejections R2 and R3 of Claims 4–6, 11, 15–17 and 22
In view of the lack of any substantive or separate arguments directed
to obviousness Rejection R2 of dependent claims 4–6 and 15–17 under
§ 103(a) (see App. Br. 10–11), and Rejection R3 of dependent claims 11 and
22 (see App. Br. 11) we sustain the Examiner’s rejections of these claims, as
they fall with their respective independent claims. See 37 C.F.R.
§ 41.37(c)(1)(iv).
CONCLUSION
The Examiner erred with respect to obviousness Rejection R1 of
dependent claims 10 and 21, and we do not sustain the rejection. The
Examiner did not err with respect to obviousness Rejection R1 of claims 1–
3, 7–9, 12–14, 18–20, and 23, R2 of claims 4–6 and 15–17 and R3 of claims
11 and 22 under 35 U.S.C. § 103(a) over the cited prior art combinations of
record, and we sustain these rejections.
DECISION SUMMARY
Claims Rejected Basis Affirmed Reversed
1–3, 7–10, 12–14,
18–21, 23
R1: § 103
Rosenberg,
Lingafelt
1–3, 7–9, 12–14,
18–20, 23
10 and 21
4–6, 15–17 R2: § 103
Rosenberg,
Lingafelt,
Chen
4–6, 15–17
11 and 22 R3: § 103
Rosenberg,
Lingafelt,
Salomons
11 and 22
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Claims Rejected Basis Affirmed Reversed
Overall Outcome 1–9, 11–20, 22, 23 10 and 21
FINALITY AND 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). See 37
C.F.R. § 41.50(f).
AFFIRMED-IN-PART