Ex Parte Moore

Patent Trial and Appeal Board

Mar 17, 2015

11535710 (P.T.A.B. Mar. 17, 2015)

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.
11/535,710 09/27/2006 Sean Samuel Butler Moore 3655/0323PUS1 7975
47827 7590 03/17/2015
Avaya by MUNCY, GEISSLER, OLDS & LOWE, P.C.
4000 LEGATO ROAD, SUITE 310
FAIRFAX, VA 22033
EXAMINER
CHERY, DADY
ART UNIT PAPER NUMBER
2461
MAIL DATE DELIVERY MODE
03/17/2015 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 SEAN SAMUEL BUTLER MOORE
____________________

Appeal 2012-009383
Application 11/535,710
Technology Center 2400
____________________

Before MICHAEL J. STRAUSS, CATHERINE SHIANG, and
NATHAN A. ENGELS, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-009383
Application 11/535,710
2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1–8, 10, and 12–33.
1
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to a bidirectional user notification system for
media quality control. Spec. 21. Claim 1(App. Br. 16), reproduced below,
is representative of the claimed subject matter:
1. A notification method for improving the quality of a media
flow in a packet switched transmission network, comprising:
detection by the end user of an impairment in the media
received by the end user from the packet switched transmission
network;
initiation by the end user of a pull message to a media
quality control system disposed between the end user and the
packet switched transmission network; and
causing the media quality control system to improve the
media flow in response to the pull message, in order to mitigate
the impairment detected by the end user.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hardy
Clark
US 6,370,120 B1
US 7,075,981 B1
Apr. 9, 2002
July 11, 2006
Chang US 2008/0060030 A1 Mar. 6, 2008

1
The rejection of claims 9 and 11 is withdrawn. See Ans. 4. However,
because the Examiner does not formally withdraw the rejection of claims 21,
23, and 29, we consider the rejection of those claims as set forth in the
Office Action of August 5, 2011 (“Non-Final Act.”) to remain outstanding
despite the Examiner’s failure to repeat the rejection of these claims in the
Examiner’s Answer. See Ans. 5–13, Reply Br. 1.
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REJECTIONS
The Examiner made the following rejections:
Claims 1–3, 6, 12–15, 18, 21, and 23–33 stand rejected under
35 U.S.C. § 102(e) as being anticipated by Chang. Non-Final Act. 3–8, Ans.
4, c.f. Ans. 3.
Claims 4, 5, 8, 10, 16, 17, 20, and 22 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Chang and Hardy. Non-Final Act. 9–
11, Ans. 11–13.
Claims 7 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chang and Clark. Non-Final Act. 11–12, Ans. 13.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments the Examiner has erred. We disagree with Appellant’s
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Non-Final Act.
3–12, Ans. 5–13) and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 13–15)
and concur with the conclusions reached by the Examiner. We highlight the
following arguments for emphasis seriatim as they are presented in the
Appeal Brief, pages 5–14, adopting Appellant’s section headings for ease of
reference.

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A) Claims 1–3, 6, 9, 11–15, 18, 21, and 23–33
Claims 1, 12, 25, and 27–29
Appellant contends Chang’s subscriber terminal would not be
understood as an “end user” as required by claim 1. App. Br. 6. The
Examiner finds otherwise, i.e., an end user is interpreted to include a
subscriber or a subscriber operator/user located as per the customer premises
equipment (CPE) disclosed by Chang. Ans. 13–14.
We agree with the Examiner. Although Appellant argues an end user
is an individual (App. Br. 6), the Specification omits a definition of an “end
user.” Other than attorney argument, Appellant provides insufficient
evidence to persuade the Examiner’s interpretation of the argued term is
unduly broad or inconsistent with the Specification. To the contrary, the
Specification selectively qualifies the term “end user” with “human” and
otherwise merely refers to end users in general without further limitation.
See, e.g., Spec. 7, 8. Therefore, absent a specific definition of end user
appearing in the Specification or claim language requiring an individual, i.e.,
“human” end user, Appellant’s argument are not commensurate in scope
with the claim. Accordingly, to the extent the disputed steps of claim 1 are
performed by Chang’s user terminal, such actions disclose performance of
the steps by an “end user.”
Furthermore, even if the disputed end user were interpreted to require
an individual or human, Chiang’s disclosure of a subscriber terminal further
discloses a subscriber (see Chang ¶ 5) which would have been understood to
include an individual or “human end user.” Because the individual
subscriber uses the subscriber terminal to access a network (Chang ¶ 5),
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actions by the terminal used by the subscriber are, under a broad but
reasonable interpretation, performed by the end user as required by claim 1.
For the reasons supra Appellant’s contentions of error in connection
with claim 1 are unpersuasive of Examiner error. Therefore, we sustain the
rejection of claim 1 under 35 U.S.C. § 102(e) as being anticipated by Chang.
For the same reasons, we further sustain the rejection of claims 12, 25, and
27–29 which are not separately argued.

Claim 2
Appellant additionally contends dependent claim 2 is distinguishable
over Chang because “a person of ordinary skill in the art would not refer to
re-sending a lost packet as ‘providing to the end user a push message
announcing an impairment.’” App. Br. 7. The Examiner responds by
finding Chang’s video service component transmission of a message, i.e., the
lost multicast video packet, discloses providing the end user a push message
announcing an impairment. Ans. 9, 14.
We agree with the Examiner. Other than asserting nonequivalence,
Appellant fails to provide sufficient evidence or line of reasoning explaining
why the Examiner’s interpretation of the disputed claim language is not
included in and disclosed by Chang’s transmission of the lost multicast
video packet which is itself indicative of an impairment, i.e., a prior loss of
the packet. Therefore, we sustain the rejection of claim 2 under 35 U.S.C.
§ 102(e) as being anticipated by Chang.

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Claim 3
Appellant contends Chang’s access control module “has nothing to do
with a quality control system or a path control system [as required by claim
3.]” App. Br. 8. But Appellant merely quotes one paragraph of Chang and
states that contention without analysis or supporting evidence. Such naked
allegations, absent evidence or reasoning explaining why the Examiner’s
findings and/or conclusions are erroneous, do not constitute persuasive
arguments for patentability. See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”); In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”). Therefore, we
sustain the rejection of claim 3 under 35 U.S.C. § 102(e) as being anticipated
by Chang.

Claim 6
Appellant’s contention that Chang’s subscriber terminal does not
disclose a user being provided with an audio or visual push message because
the terminal is not an “end user” is unpersuasive of error for the reasons
supra in connection with claim 1. Appellant’s additional contention that
Chang’s retransmission of a lost video packet fails to disclose an audio or
video push message is likewise unpersuasive because it amounts to no more
than a naked assertion that the disputed claim element is not found in the
prior art without any supporting evidence or explanation. See 37 C.F.R.
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§ 41.37(c)(1)(vii); Lovin, 652 F.3d at 1357. Therefore, because Appellant
fails to rebut the Examiner’s findings (see Ans. 9, 14), we sustain the
rejection of claim 6 under 35 U.S.C. § 102(e) as being anticipated by Chang.

Claims 9 and 11
Because the Examiner has withdrawn the rejection of claims 9 and 11
(see Ans. 4), we do not address these claims.
2

Claims 13, 24, 26, 30, and 31
Appellant contends Chang’s subscriber terminal does not perform the
identical functions of the structures in claim 13, i.e., the disclosed structures
corresponding to the “means” recited by claim 13. App. Br. 9–10.
Appellant argues “[f]or example, the means for detecting an impairment
could be the earpiece of a user’s telephone and the means for initiating a pull
message could be a hardware button or software interface. Chang’s
subscriber terminal does not perform these functions and is not equivalent to
these structural elements.” App. Br. 10. However, Appellant’s contention is
not supported by argument detailing what specific functions are not
performed or what elements of Chang are not equivalent to structural
elements corresponding to the recited means. Furthermore, while Appellant
gives hypothetical examples of what structures “could” correspond to the
recited means, these examples are not reflected in the Summary of Claimed
Subject Matter section of Appellant’s Appeal Brief addressing claim 13 as
required by 37 C.F.R. § 41.37(c)(1)(v). See App. Br. 3. In the absence of
persuasive evidence or argument specifying particular structure or

2
See, however, the discussion of claims 21 and 23 infra.
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functionality which is absent from Chang, we sustain the rejection of claim
13 under 35 U.S.C. § 102(e) as being anticipated by Chang together with the
rejection of claims 24, 26, 30, and 31 which are not separately argued.

Claims 14, 15, and 18
Appellant does not provide separate arguments in connection with
claims 14, 15, and 18, instead relying on arguments presented supra and
which we find unpersuasive of Examiner error. App. Br. 10–11.
Accordingly, we sustain the rejection of claims 14, 15, and 18 under
35 U.S.C. § 102(e) as being anticipated by Chang.

Claims 21 and 23
Appellant contends claims 21 and 23 are patentable based on (i)
arguments present in connection with claim 13 from which the claims
depend and (ii) for the reasons argued in connection with claim 9 (the
rejection of which was subsequently withdrawn.) App. Br. 11. Appellant’s
contentions are unpersuasive of error. In particular, arguments presented in
connection with and based on dependency from claim 13 are unpersuasive
for the reasons supra. Furthermore, although the Examiner has withdrawn
the rejection of claim 9 (Ans. 4), we find Appellant’s corresponding
contentions of error unpersuasive. Appellant argues Chang’s subscriber
terminal does not include a hardware button used to initiate a pull message.
We disagree. Appellant’s Specification does not include a definition of the
claimed hardware button. In the absence of a specific definition of hardware
or hardware button appearing in Appellant’s Specification, it is appropriate
to consult a dictionary definition of the word for guidance in determining the
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ordinary and customary meaning of the claim term as viewed by a person of
ordinary skill in the art. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348
(Fed. Cir. 2010). The MICROSOFT COMPUTER DICTIONARY defines
“hardware” as “[t]he physical components of a computer system, including
any peripheral equipment such as printers, modems, and mouse devices”
3

and a “button” as “[a] graphical element in a dialog box that, when activated,
performs a specified function.”
4
Chang discloses a “physical terminal”
which satisfies the requirement for hardware. See Chang ¶ 5. Because
Chang provides for end user initiation of a pull message as required by claim
1, it provides a way to activate the function thereby satisfying a broad but
reasonable interpretation of a “button.” Therefore, a broad but reasonable
interpretation of a hardware button includes and is disclosed by Chang’s
physical subscriber terminal which provides subscriber access to a network.
Chang ¶¶ 5, 75; see also Non-Final Act., 8.
Therefore, Appellant’s arguments are unpersuasive of Examiner.
Accordingly, we sustain the rejection of claims 21 and 23 under 35 U.S.C.
§ 102(e) as being anticipated by Chang.

Claim 32
Appellant contends the Examiner’s application of Chang to the
structure of claim 32 results in a mapping which is a physical impossibility.
App. Br. 12. Appellant contends, if Chang’s subscriber terminal is (1) an
end user device, (2) an end user, and (3) an input device used by the end
user, as applied by the Examiner, then “Chang’s subscriber terminal must be

3
MICROSOFT COMPUTER DICTIONARY 246 (5
th
ed. 2002).
4
MICROSOFT COMPUTER DICTIONARY 79.
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disposed between itself and a network, a physical impossibility, and the
subscriber terminal must also be an input device associated with itself and
actuatable by itself when it detects an impairment in the media.” Id.
Appellant further argues, although Chang’s subscriber terminal may be an
end user device, a person of ordinary skill in the art “would not interpret the
subscriber terminal to also be the end user of the network and an input
device associated with the subscriber terminal.” Id.
We find Appellant’s contention to be unpersuasive of Examiner error.
Other than attorney argument, Appellant fails to provide sufficient evidence
or line of reasoning explaining why Chang’s subscriber terminal cannot
disclose the disputed elements of an end-user device and an input device.
Although claim 32 defines the end user device as disposed between an end
user and the packet switched transmission network, the end user is not
positively claimed. Similarly, although the input device is required to be
actuable by an end user, there is no requirement for an end user.
Furthermore, for the reasons explained supra, a broad but reasonable
interpretation of “end user” can include either or both of Chang’s subscriber
terminal and a human subscriber using the subscriber terminal. Therefore, in
the absence of sufficient rebuttal evidence or argument, we are not
persuaded of Examiner error and sustain the rejection of claim 32 under
35 U.S.C. § 102(e) as being anticipated by Chang.

Claim 33
Appellant contends that under the Examiner’s interpretation, Chang’s
subscriber terminal would include “an indicator for indicating to itself that
the media quality control system has detected a quality of service issue”
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which Appellant contends in nonsensical. App. Br. 13. We disagree. Claim
33 only requires the end-user device includes an indicator, and also recites
an intended use of the indicator “for indicating to the end user that the media
quality control system has detected a quality-of-service issue.” Because in
Chang, the video service component transmits the lost video packet to the
subscriber terminal, the transmission indicates a detected quality-of-service
issue. See Chang ¶ 81, Ans. 10. Although Appellant’s Specification gives
examples of visual and audible signals indicating the existence of an
impairment (see, e.g., Spec. p. 13–14), the Specification falls short of a
narrowing definition and a broad but reasonable interpretation of an
indicator is not limited to a human perceptible signal but includes an
indicator detectable by the subscriber terminal such as the transmission of a
lost packet. Therefore, Appellant’s contention is not persuasive of Examiner
error and we sustain the rejection of claim 33 under 35 U.S.C. § 102(e) as
being anticipated by Chang.

B) Claims 4, 5, 8, 10, 16, 17, 20, and 22
Claims 4, 5, 16, and 17
Appellant does not separately argue the rejection of claims 4, 5, 16,
and 17, instead, relying on arguments presented in connection with the
respective independent claims 1 and 13. App. Br. 13–14. Having found
those arguments unpersuasive of Examiner error, for the same reasons we
sustain the rejection of claims 4, 5, 16, and 17 under 35 U.S.C. § 103(a) over
Chang and Hardy.

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Claims 8, 10, 20, and 22
Appellant additionally contends the combination of Chang and Hardy
is deficient because “the examiner does not indicate how Chang should be
modified to satisfy the [disputed] limitation [of claim 8.]” App. Br. 14.
Appellant further contends Examiner’s rationale for modifying Chang to
incorporate Hardy’s software interface initiating a pull message is
inadequate to support a conclusion of obviousness. Id. We are not
persuaded of error.
In connection with how Chang should be modified, Appellant
provides insufficient evidence or argument explaining why the modification
would be beyond the level of skill of the ordinary artisan. Hardy is applied
for teaching a software interface for initiating a pull message. Absent
sufficient evidence or argument to the contrary, we find the ordinarily skilled
artisan, being a creative individual, would have fit the cited teachings of
Chang and Hardy together like pieces of a puzzle to predictably result in the
disputed limitations. “It is common sense that familiar items may have
obvious uses beyond their primary purposes, and a person of ordinary skill
often will be able to fit the teachings of multiple patents together like pieces
of a puzzle.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 402 (2007).
Courts should “take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418.
We are also not persuaded the Examiner’s reason for making the
modification is deficient. In particular, Appellant fails to provide sufficient
evidence or argument the combination of Chang and Hardy yields anything
other than predictable results. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398, 416 (2007) (“The combination of familiar elements according to known
Appeal 2012-009383
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methods is likely to be obvious when it does no more than yield predictable
result.”) Instead, we find the Examiner’s proffered combination of familiar
prior art elements according to their established functions would have
conveyed a reasonable expectation of success to a person of ordinary skill at
the time of the invention. We further find the Examiner has articulated
reasoning with rational underpinnings sufficient to justify the legal
conclusion of obviousness. Ans. 11, 15. Therefore, we find unpersuasive of
error Appellant’s contention the combination of Chang and Hardy is
improper and sustain the rejection of claims 8, 10, 20 and 22 under
35 U.S.C. § 103(a) over Chang and Hardy.

C) Claims 7 and 19
Appellant does not separately argue the rejection of claims 7 and 19,
instead relying on arguments presented in connection with the respective
independent claims 1 and 13. App. Br. 14. Having found those arguments
unpersuasive of Examiner error, for the same reasons we sustain the
rejection of claims 7 and 19 under 35 U.S.C. § 103(a) over Chang and Clark.

DECISION
The Examiner’s decision to reject claims 1–8, 10, and 12–33 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).

AFFIRMED
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