Ex Parte Hogg

Patent Trial and Appeal Board

Jul 31, 2013

11603960 (P.T.A.B. Jul. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOHN S. HOGG JR.
____________________

Appeal 2011-001469
Application 11/603,9601
Technology Center 2600
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Before THU A. DANG, JAMES R. HUGHES, and
JEFFREY S. SMITH, Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed November 22, 2006. The real party in interest is
Evercom Systems, Inc. (App. Br. 2.)
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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1-36, which are all the claims remaining in
the application. (App. Br. 2-3.) We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Appellant’s Invention
The invention at issue on appeal concerns telephone call processing
systems and methods for detecting an anomaly occurring during the call,
such as an unauthorized party joining the call. (Spec. ¶¶ [0002], [0017];
Abstract.)2
Representative Claim
Independent claim 1, reproduced below, with disputed limitations
italicized, further illustrates the invention:
1. A method comprising:
determining a biometric print for at least one authorized
party to a call;
capturing biometric information for the at least one
authorized party during the call;
monitoring background audio for the at least one
authorized party to the call; determining, based upon the
background audio, when a third party is near the at least one
authorized party during the call; and

2 We refer to Appellant’s Specification (“Spec.”); Appeal Brief (“Br.”) filed
April 29, 2010; and Reply Brief (“Reply Br.”) filed September 28, 2010.
We also refer to the Examiner’s Answer (“Ans.”) mailed July 21, 2010.
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monitoring the captured biometric information during the
call to detect, based at least in part on the determined biometric
print, an anomaly in the call.
Rejections on Appeal
1. The Examiner rejects claims 1-12 and 19-21 under 35 U.S.C.
§ 102(e) as being anticipated U.S. Pat. Pub. No. 2006/0285650 A1,
published Dec. 21, 2006 (filed Jan. 28, 2005) (“Hodge”).
2. The Examiner rejects claim 35 under 35 U.S.C. § 103(a) as
being unpatentable over Hodge and U.S. Pat. Pub. No. 2006/0285659 A1,
published Dec. 21, 2006 (filed Jun. 2, 2005) (“Suryanarayana”).
3. The Examiner rejects claims 13-18 under 35 U.S.C. § 103(a) as
being unpatentable over Hodge, Suryanarayana, and U.S. Pat. Pub. No.
2004/0073430 A1, published Apr. 15, 2004 (“Desai”).
4. The Examiner rejects claims 22-24, 34, and 36 under 35 U.S.C.
§ 103(a) as being unpatentable over Hodge, U.S. Patent No. 7,102,509 B1,
issued Sep. 5, 2006 (“Anders”), Suryanarayana, and Desai.
5. The Examiner rejects claims 25-33 under 35 U.S.C. § 103(a) as
being unpatentable over Hodge and Anders.

ISSUES
Based on our review of the administrative record, Appellant’s
contentions, and the Examiner’s findings and conclusions, the pivotal issues
before us follows:
1. Does the Examiner err in finding that Hodge discloses
“monitoring background audio for the at least one authorized party to the
call; [and] determining, based upon the background audio, when a third
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party is near the at least one authorized party during the call” within the
meaning of Appellant’s claim 1?
2. Does the Examiner err in finding that Hodge discloses
“monitoring the audio during the call to identify background audio generated
by a source other than an authorized party to the call; and comparing the
background audio to voice prints of well-known voices to identify the source
of the background audio” within the meaning of Appellant’s claim 19?
3. Does the Examiner err in concluding that the combination of
Hodge, Suryanarayana, and Desai would have collectively taught or
suggested “monitoring a background noise level on the call; [and] assigning
a confidence score to the biometric identification, the confidence score
determined by the background noise level detected on the call” within the
meaning of Appellant’s claim 13?

FINDINGS OF FACT
We adopt the Examiner’s findings in the Answer and the Final Office
Action mailed December 10, 2009, as our own, except as to those findings
that we expressly overturn or set aside in the Analysis that follows.

ANALYSIS
Based on Appellant’s arguments (App. Br. 8-18), we select
independent claims 1, 13, and 19 as representative of Appellant’s arguments
and groupings with respect to claims 1-36. 37 C.F.R. § 41.37(c)(1)(iv).
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The § 102 Rejection of Claim 1
Appellant contends that Hodge does not disclose the features recited
in claim 1. (App. Br. 10-15; Reply Br. 1-2.) Specifically, Appellant
contends that: “There is no disclosure of monitoring ‘background audio’ in
Hodge. Furthermore, there is no disclosure in paragraph [0073] that
background audio can be used to identify whether third parties are near to an
authorized party to a call. Hodge only determines that a third party is
participating in the call.” (App. Br. 15).
The Examiner sets forth a detailed explanation of the anticipation
rejection in the Examiner’s Answer with respect to each of the claims so
rejected (Ans. 3-7, 22-23) and, in particular, the rejection of claim 1 (Ans. 3-
4, 22-23). Specifically, the Examiner provides a detailed explanation with
respect to Hodge’s disclosure of telephone call monitoring and unauthorized
third-party detection through voice recognition means. (Ans. 4. 22-23
(citing Hodge, ¶ [0073]).) We adopt these findings and this reasoning as our
own.
Upon consideration of the evidence on this record and each of
Appellant’s contentions, we find that the preponderance of evidence on this
record supports the Examiner’s findings that Hodge discloses the disputed
features of claim 1. Accordingly, we sustain the Examiner’s rejection of
claim 1 for the reasons set forth in the Answer, which we incorporate herein
by reference. (Ans. 3-7, 22-23.) Our additional analysis will be limited to
the following points of emphasis.
We initially note that one of the argued limitations fails to distinguish
the claimed invention from the prior art either structurally or functionally.
Specifically, the recited feature argued by Appellant – “monitoring
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background audio” (claim 1) – essentially consists of data – i.e., non-
functional descriptive material. The recited “background audio” is
essentially non-functional descriptive material in that the limitation simply
recites monitoring audio information other than that produced by the
authorized party3 – i.e. sound information, which is simply audio signals or
more simply, data. The monitored data (audio signals) constitutes non-
functional descriptive material, which merely recites what the information or
data represents (the name or label for the data). The recited structure and
functionality of the claim elements – “monitoring” the information
(“background audio”), as well as “determining, based upon” the information
(“background audio”) remain the same regardless of what the data
constitutes, how the data may be named, or the relationship among the data
and do not further limit the claimed invention either functionally or
structurally. The informational content of the data thus represents non-
functional descriptive material, which “does not lend patentability to an
otherwise unpatentable computer-implemented product or process.” Ex
parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential). See Ex

3 Although Appellant argues at length (App. Br. 10-15; Reply Br. 1-2) that
he disagrees with the Examiner’s broad definition of “background audio”,
this definition is irrelevant to our construction of the claim limitation. Even
so, we note that both Appellant and the Examiner concur on the meaning of
“background audio”. Appellant asserts that “the term ‘background
Audio’ should be interpreted to mean ‘audio captured from one party’s side
of a call and originating from a source other than the party.’” (App. Br. 13.)
The Examiner asserts that “background audio” means “voice/audio other
than the authorized party.” (Ans. 22.) Thus, we broadly but reasonable
construe “background audio” to mean audio (sound) information other than
that produced by (originating from) the authorized party.
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parte Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (informative) (Fed. Cir.
Appeal No. 2006-1003), aff’d, (Rule 36) (June 12, 2006) (“wellness-related”
data in databases and communicated on distributed network did not
functionally change either the data storage system or the communication
system used in the claimed method). See also In re Ngai, 367 F.3d 1336,
1339 (Fed. Cir. 2004); Nehls, 88 USPQ2d at 1887-90 (discussing non-
functional descriptive material).
Even if we arguendo ascribe some patentable weight to the limitation,
as explained by the Examiner, Hodge describes monitoring a telephone call
and determining that a unauthorized third-party is present (during a
telephone call). (See Ans. 22-23.) Specifically Hodge discloses monitoring
a telephone call (¶¶ [0069]-[0073]), which would include monitoring audio
information produced by other than the authorized party (¶ [0073]). Hodge
also discloses that “[t]he telephone management system may also include a
feature that terminates the telephone call if more then [(sic)] a certain
number of individuals are included in the conversation. It is foreseeable that
this may be accomplished by voice recognition means.” (¶ [0073].) We
interpret this portion of Hodge to describe determining that unauthorized
individuals are included in (present during) the telephone call by utilizing
voice recognition.
Appellant further contends that Hodge does not disclose that an
unauthorized party is “near” an authorized party during a telephone call, and
disagrees with the Examiner’s definition of “near.” (App. Br. 14-5; Reply
Br. 2.) Appellant does not define or otherwise limit what “near” means,
either in the claim or in the Specification. We broadly but reasonably
construe near to mean in the vicinity of and/or in communication with,
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which comports with the Examiner’s definition – i.e. “communicatively
near” (Ans. 23). In order for voice recognition to detect an unauthorized
party, audio information must be received. It follows; therefore, the
unauthorized party must be in communication with or in the vicinity (near)
the authorized party for the unauthorized party to be detected (via voice
recognition from the monitored call data). Thus we find Hodge discloses the
disputed limitations – “monitoring background audio for the at least one
authorized party to the call; [and] determining, based upon the background
audio, when a third party is near the at least one authorized party during the
call.”
Thus, Appellant does not persuade us of error in the Examiner’s
anticipation rejection of representative independent claim 1 or dependent
claims 2-12 (dependent thereon) not separately argued with particularity.
(App. Br. 18.) Accordingly, we affirm the Examiner’s anticipation rejection
of claims 1-12.
The § 102 Rejection of Claim 19
Appellant contends that Hodge does not disclose the features recited
in claim 19 – i.e., “monitoring the audio during the call to identify
background audio generated by a source other than an authorized party to
the call; and comparing the background audio to voice prints of well-known
voices to identify the source of the background audio” (claim 19). (App. Br.
15-16.) Specifically, Appellant contends that “[t]he cited Hodge disclosure
is missing at least the following features: detecting background audio,
comparing background audio to anything, voice prints of well-known voices,
and comparing background audio to well-known voices in particular.”
(App. Br. 16.)
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As with claim 1 (supra), “background audio” is merely data, i.e., non-
functional descriptive material. As we explained with respect to claim 1
(supra), Hodge discloses monitoring (and identifying) audio signals as well
as utilizing voice recognition to determine if an unauthorized party is
present. We find that voice recognition means, as disclosed by Hodge (¶
[0073]) includes comparing audio signals to voice data, i.e., voice prints.
Appellant does not define what “well known voices” are, other than that they
are voice prints.
Thus, Appellant does not persuade us of error in the Examiner’s
anticipation rejection of representative independent claim 19 and claims 20
and 21not separately argued with particularity. (App. Br. 18.) Accordingly,
we affirm the Examiner’s anticipation rejection of claims 19-21.
The § 103 Rejection of Claim13
Appellant merely contends that Hodge does not disclose a
“background noise level” or “monitoring a background noise level.” (App.
Br. 16.) As with claim 1 (supra), “background noise level” is merely data,
i.e., non-functional descriptive material. Even so, as we explained with
respect to claim 1 (supra), Hodge discloses monitoring audio signals.
Therefore, we conclude that Hodge would have at least suggested
“monitoring a background noise level.”
Thus, Appellant does not persuade us of error in the Examiner’s
obviousness rejection of representative independent claim 13 and dependent
claims 14-18 not separately argued with particularity. (App. Br. 18.)
Accordingly, we affirm the Examiner’s anticipation rejection of claims 13-
18.

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The § 103 Rejection of Claim 34
As with claim 13 (supra), Appellant contends that Hodge does not
disclose a “background noise level,” and in particular, “means for
monitoring a background noise level,” (App. Br. 17.) As with claims 1 and
13 (supra), we find Appellant’s arguments unavailing of Examiner error.
Accordingly, we affirm the Examiner’s obviousness rejection of independent
claim 34.
The § 103 Rejection of Claim 25
As with claim 19 (supra), Appellant contends that Hodge does not
disclose “background audio,” and in particular, “background audio logic for
monitoring background audio,” (App. Br. 17.) As with claims 1 and 19
(supra), we find Appellant’s arguments unavailing of Examiner error.
Accordingly, we affirm the Examiner’s obviousness rejection of independent
claim 25.
Independent claim 22 and
Dependent Claims 23, 24, 26-33, 35, and 36
Appellant does not separately argue independent claim 22 or
dependent claims 23, 24, 26-33, 35, and 36 with particularity. Claim 22
includes limitations commensurate in scope with claims 13 and 19. Claims
23, 24, and 36 depend on claim 22. Claims 26-33 and 35 depend on claims
1 and 25, respectively. Accordingly, we affirm the Examiner’s obviousness
rejection of claims 22-24, 26-33, 35, and 36 for the same reasons as claims
1, 13, 19, and 25 (supra).

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CONCLUSIONS OF LAW
Appellant has not shown that the Examiner erred in rejecting claims
1-12 and 19-21 under 35 U.S.C. § 102(e).
Appellant has not shown that the Examiner erred in rejecting claims
13-18 and 22-36 under 35 U.S.C. § 103(a).

DECISION
We affirm the Examiner’s rejections of claims 1-36.

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

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