Ex Parte Murray et al

Patent Trial and Appeal Board

Oct 21, 2013

11747154 (P.T.A.B. Oct. 21, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/747,154 05/10/2007 Douglas G. Murray AVST 016 UTL 3995
35070 7590 10/21/2013
ANATOLY S. WEISER
3525 DEL MAR HEIGHTS ROAD, #295
SAN DIEGO, CA 92130
EXAMINER
HSU, ALPUS
ART UNIT PAPER NUMBER
2465
MAIL DATE DELIVERY MODE
10/21/2013 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 DOUGLAS G. MURRAY, STEVEN J. TINDALL, and
ROGER E. VISSER
___________

Appeal 2011-003266
Application 11/747,154
Technology Center 2400
____________

Before MARC S. HOFF, DEBRA K. STEPHENS, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/747,154

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This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-29 and 31-63. App. Br. 5, 13.1 We have jurisdiction under
35 U.S.C § 6(b).
We affirm.

STATEMENT OF THE CASE
The invention relates generally to storing system configuration data
and subscriber information in a central repository of a core node and
replicating a portion of the stored information to a plurality of non-core
nodes. See generally Abstract.
Claim 1 is illustrative:
1. A messaging system comprising:
a core node configured to provide central repository
services for storing system configuration and subscriber
information; and
a plurality of non-core nodes, each non-core node of the
plurality of non-core nodes being in communication with
telephone switching equipment associated with said each non-

1 There are a number of inconsistencies in the identification of the claims
under appeal. The Notice of Appeal mailed March 31, 2010 indicates that
appeal is taken from the final rejection of claims 1-29 and 31-63.
Appellants’ Appeal Brief indicates that claims 1-63 are pending and rejected
and that appeal is take from the rejection of claims 1-51 and 54-63. App. Br.
4. The Appeal Brief also identifies the GROUNDS OF REJECTION TO
BE REVIEWED ON APPPEAL as including claims 30, 52, and 53. App.
Br. 13. Appellants’ Reply Brief indicates that claims 1-29 and 31-63 are
pending and only the rejections of claims 1-29, 31-52, and 54-63 are under
appeal. Reply Br. 3. The Reply Brief then identifies the GROUNDS OF
REJECTION TO BE REVIEWED ON APPEAL as including claims 52
and 53. Reply. Br. 4. We resolve these discrepancies finding that claim 30
was cancelled and thus not before us on appeal and that claims 52 and 53 are
presented for our decision in this appeal.
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core node, said each non-core node being configured to provide
a platform for running telephony user interface applications for
processing telephone calls;
wherein the core node and said each non-core node are
configured to replicate at least a portion of the system
configuration information stored on the core node to said each
non-core node.

THE REJECTIONS
Claims 1-18, 20-25, 27-29, 31-42, and 44-63 are rejected under
35 U.S.C. § 103(a) as unpatentable over Quintiliano (U.S. Patent Publication
No. 2007/0168692 A1; published July 19, 2007, filed Nov. 30, 2005) and
Fitzgerald (U.S. Patent Publication No. 2007/0036331 A1; published Feb.
15, 2007). Ans. 4-31.
Claims 19 and 43 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Quintiliano, Fitzgerald, and Naseh (U.S. Patent
Publication No. 2006/0195607 A1; published Aug. 31, 2006). Ans. 31-33.
Claim 26 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Quintiliano, Fitzgerald, and Frank (U.S. Patent No. 5,822,578; issued Oct.
13, 1998). Ans. 33-34.

REJECTIONS OVER QUINTILIANO AND FITZGERALD
INDEPENDENT CLAIM 1
The Examiner rejects claim 1, finding that Quintiliano teaches all
elements including replication of information among Exchange servers to
allow continued operation in a failover. Ans. 5. The Examiner finds that
Quintiliano does not teach that the failover system is “being applied to
storing subscriber information for telephony applications and processing
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telephone calls.” Id. The Examiner then finds that “it was well-known in
the art at the time of the invention to use back-up servers in order to protect
subscriber information and to provide telephony service in the case of a
failure” and cites Fitzgerald as teaching this feature. Ans. 5-6.
Appellants argue that the combination of Quintiliano and Fitzgerald
fails to teach the messaging system as recited in claim 1 (App. Br. 14-18),
summarily contending that
Neither reference discloses or suggests a core node
configured to provide central repository services for storing
system configuration and subscriber information of a messaging
system configured to provide telephony messaging services to
subscribers. Neither reference discloses or suggest non-core
nodes configured to provide telephony messaging services to
subscribers. Neither reference discloses or suggests replication
of configuration information from a core node to multiple non-
core telephony nodes.
App. Br. 18.
ISSUE
Appellants’ arguments present us with the following issue: Has the
Examiner erred in finding that the combination of Quintiliano and Fitzgerald
teaches all features recited in claim 1?
ANALYSIS
Appellants specifically argue that “Quintiliano does not disclose
telephone switching equipment . . . Quintiliano therefore does not disclose
the kind of ‘messaging system’ described throughout the specification and
recited in independent claim 1.” App. Br. 14; see also Reply Br. 5. We first
note that claim 1 does not include “telephone switching equipment” as an
element of the claim but rather recites that each non-core node is “in
communication with” telephone switching equipment. Thus, Appellants’
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argument is not commensurate with the recitations of claim 1. Moreover,
the Examiner cites Quintiliano as showing non-core nodes “in
communication with switching equipment” (Ans. 5) and relies on Fitzgerald
for showing communication with telephone switching equipment (Ans. 6)
and Appellants have not provided sufficient evidence to rebut the
Examiner’s findings. Thus, we are unpersuaded by Appellants’ arguments
that Quintiliano does not teach “each non-core node of the plurality of non-
core nodes being in communication with telephone switching equipment.”
Appellants further argue that Fitzgerald does not describe a messaging
system “that provides services to subscribers.” App. Br. 15. Appellants
further contend that “[c]laim 1 requires the messaging system to provide
services to subscribers.” Id. Appellants’ argument focuses on a purported
definition of “subscriber” such that Appellants contend there is no
“subscriber information” taught by either Quintiliano or Fitzgerald. App.
Br. 15-16 (citing Spec. ¶ 0026 as defining “subscriber” as signifying “a
person who can receive and send messages using a particular messaging
system”); see also Reply Br. 6. Even based on this definition, we agree with
the Examiner’s interpretation of “subscriber” as recited in the claims as
reading on “users” of Quintiliano or “agents” in Fitzgerald. Ans. 34-35.
Appellants have not identified sufficient evidence or argument to persuade
us the Examiner’s interpretation of the term “subscriber” is not reasonable in
light of the Specification or otherwise in error. Therefore, in light of this
interpretation, we agree with the Examiner that “Quintiliano stores exchange
functions for users.” Ans. 34. We also agree with the Examiner that the
agents taught by Fitzgerald are within the scope of Appellants’ purported
definition of “subscriber.” Ans. 35. We are therefore unpersuaded by
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Appellants’ argument that the combination of Quintiliano and Fitzgerald fail
to disclose “subscribers” and thus fails to teach “subscriber information”
(claim 1) or “[a] messaging system for servicing a plurality of subscribers”
(claim 55).
Appellants further argue that Quintiliano fails to disclose replication
of information to multiple nodes because Quintiliano discloses backup to
only a single recovery server. App. Br. 17-18; see also Reply Br. 7-8.
Appellants also contend that any reference in Quintiliano to multiple
recovery servers refers to “multiple storage devices for backup” (i.e., rather
than servers or nodes). Reply Br. 7 (citing Quintiliano ¶ 0035). We are
unpersuaded. The Examiner explains that Quintiliano recites plural “disaster
recovery servers.” Ans. 36 (citing Quintiliano ¶ 0040). We agree, and
further find that Quintiliano discloses or suggests sending snapshot backup
data to a plurality of disaster recovery servers. Thus, we find Quintiliano
discloses or suggests the core node and each non-core node are configured to
replicate information to each non-core node as recited in claim 1.
In view of the above discussion, we are not persuaded of error in the
Examiner’s rejection of independent claim 1 and independent claims 28, 51,
52, and 55 not argued separately. App. Br. 18-19.

INDEPENDENT CLAIM 59
Claim 59 recites an article of manufacture with limitations similar to
those of claim 1. Appellants argue that claim 59 is patentable for at least the
same reasons as claim 1. App. Br. 19. For the same reasons as for claim 1,
we are unpersuaded. Appellants further argue that claim 59 recites
“telephone switching equipment and said each non-core node being
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configured to provide a platform for running telephony user interface
applications and voice user interface applications for processing telephone
calls of the plurality of subscribers” and contend that neither Quintiliano nor
Fitzgerald disclose these features. Id.
We find Appellants’ argument is not commensurate with the claim
because we find no recitation of “voice user interface applications” in claim
59. We are therefore unpersuaded by Appellants’ argument.

DEPENDENT CLAIMS 7, 8, 33, AND 34
Appellants argue that neither Quintiliano nor Fitzgerald teach
replication of all system configuration information (as recited in claims 7
and 33) or replication of all subscriber information (as recited in claims 8
and 34). Ans. 20-21. The Examiner explains that a “snapshot backup” as
disclosed in Quintiliano would include any portion of the configuration and
subscriber information—including all of such information. Ans. 38.
Appellants have not provided sufficient, persuasive evidence to persuade us
Quintiliano would not replicate (through snapshot backups) all of the
configuration or subscriber information. We are therefore unpersuaded by
Appellants’ argument.

DEPENDENT CLAIMS 16 AND 40
Claim 16 depends indirectly from claim 1 and further recites in
pertinent part:
post the first plurality of received messages on the first non-core node
without automatically posting the first plurality of messages on the
core node, so that the first plurality of messages is not automatically
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available from any non-core node of the plurality of non-core nodes
other than the first non-core node.

Claim 40 depends indirectly from claim 28 and includes the identical
limitation. The Examiner finds that Quintiliano teaches this feature as the
failover process in which another server takes over for a failed server. Ans.
15. The Examiner further explains:
In Quintiliano's disaster-recovery mode, a first node takes over
for an original server. In doing so, inherently, the first server is
no longer a factor because it is shut down due to a disaster. As
such, the disaster recover node takes over the original server’s
configuration and sends and receives messages for associated
subscribers (i.e., a first set). These messages are not and cannot
be posted on the core node because the core node is shut down
due to failure (see paras. [0016] and [0017] of Quintiliano).
Ans. 38-39. Appellants argue that in Quintiliano’s failover processing, both
the original (failed) server and the failover server are “core nodes” and thus
Quintiliano does not disclose or suggest that “messages are not
automatically available from any non-core node of the plurality of non-core
nodes other than the first non-core node.” Reply Br. 8-9.
We are unpersuaded. First, we find no limitation in the claims or in
the Specification that precludes a “core” node from being configured to
provide features described for “non-core” nodes and vice versa (see, e.g.,
Spec. 12, ll. 1-2; describing a node 100 functioning as “a core node that also
provides functionality of non-core nodes”). We therefore find that either
server in Quintiliano may function as a core node and may also function as a
non-core node. We are therefore unpersuaded by Appellants’ contention
that both servers in Quintiliano must necessarily be “core” nodes as read in
the claim. Thus, we agree with the Examiner’s findings that the additional
recitations of claim 16 are taught by Quintiliano’s failover processing.
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CLAIM 24
Claim 24 depends indirectly from claim 1 and generally recites that a
portion of the replicated subscriber information comprises sufficient
information to route a call through a circuit switched private branch
exchange (“PBX”) to a targeted subscriber. The Examiner finds that
Fitzgerald teaches replication of configuration information between switches
such that a switch is capable of routing a call to a subscriber. Ans. 19.
Appellants argue that “[n]either Quintiliano nor Fitzgerald discloses
replication of such information, existence of such information, or even the
ability to use such information by connecting a call to a specific targeted
subscriber.” App. Br. 23.
The Examiner explains that Fitzgerald explicitly teaches using a PBX
as well as an Automated Call Distribution (“ACD”) system to route calls to
agents. Ans. 39 (citing Fitzgerald ¶ 0017). Further, the Examiner explains
that Appellants’ argument is substantially similar to the arguments presented
for claim 1 (e.g., Appellants’ argument that the references do not show
“subscribers” as the Appellants purport to define the term).
Initially, we broadly, but reasonably, and in light of the Specification,
construe the term “targeted subscriber” to mean a subscriber (i.e., user or
agent) intended to receive a message (e.g., a phone call). Fitzgerald
discloses directing incoming calls to agents in accordance with call
distribution rules. Fitzgerald Abstract. Thus, we find that the combination
of Quintiliano and Fitzgerald teaches routing a message or call through a
PBX to a targeted subscriber—i.e., to an agent intended to receive the
message or call in accordance with the distribution rules. We are therefore
unpersuaded by Appellants’ arguments that the combination of Quintiliano
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and Fitzgerald fails to teach “at least a portion of the subscriber information
replicated to the non-core node comprises information sufficient to route a
call received by the non-core node through the circuit switched private
branch exchange, the call being directed to a targeted subscriber of the
plurality of subscribers, to the targeted subscriber.”

CLAIM 54
Claim 54 depends from claims 52 and 53, recites similar limitations to
claim 1, and was rejected for essentially the same reasons as claim 1. Ans.
21-23. Appellants’ arguments are essentially the same as the arguments
presented for claim 1. App. Br. 24-25. We are unpersuaded for the same
reasons as discussed above for claim 1.

OTHER CLAIMS
Regarding claims 20-23, 44, and 48-50, Appellants argue that
“Quintiliano and Fitzgerald do not disclose a messaging system with the
capability to direct a telephone call to a specific subscriber.” App. Br. 23.
We find no recitation in these claims regarding directing a telephone call to a
specific subscriber. We are therefore unpersuaded because Appellants’
arguments are not commensurate with the claims.
Appellants broadly assert with respect to claims not specifically
argued: “The remaining claims with rejections subject to this appeal are
patentable at least for the reasons applicable to their respective base and
intervening claims, if any.” App. Br. 25. For the same reasons discussed
above, we are unpersuaded.

Appeal 2011-003266
Application 11/747,154

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REJECTION OVER QUINTILIANO, FITZGERALD, AND NASEH
CLAIMS 19 AND 43
Appellants argue that “Quintiliano and Fitzgerald do not disclose a
messaging system with the capability to direct a telephone call to a specific
subscriber” and the Naseh does not cure the deficiencies of Quintiliano and
Fitzgerald. App. Br. 23. We find no recitation in these claims regarding
directing a telephone call to a specific subscriber. We are therefore
unpersuaded because Appellants’ arguments are not commensurate with the
claims.

REJECTION OVER QUINTILIANO, FITZGERALD, AND FRANK
CLAIM 26
Appellants argue that the Examiner erred in asserting that use of the
SOAP protocol is a matter of design choice. App. Br. 23-24. We are
unpersuaded. We agree with the Examiner that “the use of a specific
protocol to perform that which is old and well-known [sic] does not satisfy
the requirements for patentability.” Ans. 39-40.2 Appellants have not
provided sufficient, persuasive evidence that the Examiner’s assertion is in
error. “If a person of ordinary skill can implement a predictable variation, §
103 likely bars its patentability.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 417 (2007).

2 See also Harry Newton, NEWTON’s TELECOM DICTIONARY 736 (19th
ed. 2003) evidencing that the SOAP protocol was well known at the time of
Appellants’ invention.
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DECISION
For the reasons discussed above, the rejections of claims 1-29 and 31-
63 under 35 U.S.C. § 103(a) are 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) (2010).

AFFIRMED

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