Ex Parte Orttung et al

Patent Trial and Appeal Board

Mar 12, 2018

11829823 (P.T.A.B. Mar. 12, 2018)

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.
11/829,823 07/27/2007 Mark ORTTUNG 076840-207300/US 1834
64494 7590 03/14/2018
GREENBERG TRAURIG, LLP (SV)
c/o: Greenberg Traurig LLP - Chicago Office
77 West Wacker Drive, Suite 3100
Intellectual Property Department
Chicago, IL 60601
EXAMINER
WILSON, KIMBERLY LOVEL
ART UNIT PAPER NUMBER
2167
NOTIFICATION DATE DELIVERY MODE
03/14/2018 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):
gtipmail @ gtlaw. com
clairt@gtlaw.com
rupickd@gtlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK ORTTUNG, TIMOTHY A. MILLER,
BRIAN GODDEN, and PATRICK NEWMAN
Appeal 2017-009180
Application 11/829,8231
Technology Center 2100
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTAII, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—3, 6—9, 12, 13, and 17, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 4, 5, 10,
11, 14—16, and 18—20 have been cancelled.
We AFFIRM.
1 According to Appellants, the real party in interest is DEEM, INC. App.
Br. 2.
Appeal 2017-009180
Application 11/829,823
CLAIMED SUBJECT MATTER
According to Appellants, the claims are directed to a scheduling
system for a user, which provides options for rescheduling events if the user
will be delayed to a scheduled event (Abstract). Claim 1, reproduced below,
is representative of the claimed subject matter:
1. A computer-implemented method comprising:
receiving, by a computing device, an electronic
communication from a user, the communication identifying a
duration of a delay incurred or to be incurred by the user relative
to a pre-identified schedule of events;
in response to receiving the electronic communication,
accessing, by the computing device, data identifying the pre­
identified schedule of events;
comparing the duration of the delay to a predetermined
acceptable latency time;
generating at least one option to reschedule at least one
event of the schedule of events to account for the identified delay
of the user, based on a pre-identified priority of the scheduled
events remaining and at least one alternate proposal other than
completion of the at least one event, if the duration of the delay
exceeds the predetermined acceptable latency time,
wherein generating the at least one option to
reschedule includes determining, based on the pre­
identified priority, that a first event in the schedule of
events is of greater importance than a second event in the
schedule of events,
wherein the first event is subsequent to the second
event,
wherein the at least one option to reschedule
includes an option to skip the second event and advance a
time of the first event, and
wherein the pre-identified priority of each
respective scheduled event remaining is determined, by
2
Appeal 2017-009180
Application 11/829,823
the computing device, based on a relative position of a
person in an organization attending the respective
scheduled event and on a size of business done in the
respective scheduled event;
determining whether the user is available or unavailable to
receive the at least one option to reschedule the at least one event;
in response to determining that the user is available to
receive the at least one option to reschedule, sending to the user
the at least one option to reschedule at least one event of the
schedule of events to account for the duration of the identified
delay of the user and the at least one alternate proposal along
with an alternate rescheduling proposal;
in response to determining that the user is unavailable to
receive the at least one option to reschedule:
identifying an alternate recipient to receive the
option to reschedule;
providing the option to reschedule to the alternate
recipient; and
in response to receiving at least one of a selection
from the user or the alternate recipient of the option or one
of the alternate proposals, sending notification of the
reschedule to at least one attendee and at least one service
provider of the at least one event of the scheduled events.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Raffel US 6,169,534 B1 Jan. 2, 2001
Dec. 19, 2002
Mar. 6, 2003
Jan. 18,2007
Levinson US 2002/0194048 A1
US 2003/0046304 A1
US 2007/0016643 A1
Peskin
Boss
3
Appeal 2017-009180
Application 11/829,823
REJECTION
Claims 1—3, 6—9, 12, 13, and 17 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Levinson, Raffel, Peskin, and Boss.
Final Act. 3—22.
ISSUES
35 U.S.C. § 103(a): Claims 1—3, 6—9, 12, 13, and 17
Appellants contend their invention as recited in claims 1—3, 6—9, 12,
13, and 17, is patentable over Levinson, Raffel, Peskin, and Boss (App.
Br. 9—14). The issues presented by the arguments are:
Issue 1: Has the Examiner shown Levinson teaches or suggests
“comparing the duration of the delay to a predetermined acceptable latency
time,” as recited in claim 1 and similarly recited in claims 7 and 13?
Issue 2: Has the Examiner shown Levinson or Boss teach or suggest
“determining whether the user is available or unavailable to receive the at
least one option to reschedule the at least one event,” as recited in claim 1
and similarly recited in claims 7 and 13?
Issue 3: Has the Examiner shown the combination of Levinson or
Peskin teaches or suggests “identifying a duration of a delay incurred or to
be incurred by the user,” as recited in claim 1 and similarly recited in claims
7 and 13?
Issue 4: Has the Examiner shown the combination of Levinson and
Boss teaches or suggests “in response to determining that the user is
unavailable to receive the at least one option to reschedule: identifying an
alternate recipient to receive the option to reschedule,” as recited in claim 1
and similarly recited in claims 7 and 13?
4
Appeal 2017-009180
Application 11/829,823
Issue 5: Has the Examiner improperly combined Levinson, Raffel,
Peskin, and Boss?
ANALYSIS
Issue 1
Appellants contend the Examiner erred in finding Levinson teaches
“comparing the duration of the delay to a predetermined acceptable latency
time,” as recited in claim 1 and similarly recited in claims 7 and 13 (App.
Br. 10; Reply Br. 2—3). Specifically, Appellants argue “Levinson explicitly
does not describe any sort of acceptable period” (App. Br. 10). further,
Appellants argue Levinson does not teach “a duration of time” or
“comparing two durations” (Reply Br. 2—3; App. Br. 10).
We are not persuaded. The Examiner finds (Pinal Act. 3—4), and we
agree, Levinson teaches a scheduling system in which a scheduled user
“realizes . . . that he will need an additional hour” to complete his current
task and accordingly notifies the scheduling system to “‘[w]ait 1 hour’”
before starting the user’s subsequent series of tasks (Levinson 199, Tables
5—6). The Examiner further finds (Pinal Act. 3—4), and we agree, “[a]s a
result of the user’s” hour delay “there is a conflict in the schedule” with
subsequently scheduled shopping, dinner, and movie tasks (Levinson 1100,
Tables 5—6). That conflict results in the system presenting options for the
user to “reschedule the shopping,” “change the movie” task, or “cancel the
movie or dinner tasks” (id.).
Appellants’ arguments that Levinson “does not describe any sort of
acceptable period” (App. Br. 10) and does not “compar[e] two durations” of
time (Reply Br. 2) are not persuasive. Levinson’s user indicates a “duration
of [a] delay” of an hour by notifying the system to “‘[w]ait 1 hour’”
5
Appeal 2017-009180
Application 11/829,823
(Levinson 199). That delay is outside of “a predetermined acceptable
latency time” because that delay results in “a conflict in the schedule,”
which causes rescheduling of subsequent scheduled tasks {id. 1100). That
is, in order for Levinson to determine that a delay causes an unacceptable
conflict with the predetermined start times of subsequent tasks, Levinson
compares that delay to the scheduled start time of the subsequent tasks.
Indeed, Levinson teaches an acceptable delay of 15 minutes which does not
cause conflicts with the scheduled start times of subsequent tasks {id. H 97—
98).
Accordingly, we are not persuaded the Examiner erred in finding
Levinson teaches “comparing the duration of the delay to a predetermined
acceptable latency time,” within the meaning of claims 1,7, and 13.
Issue 2
Appellants contend the Examiner erred in finding Levinson teaches
“determining whether the user is available or unavailable to receive the at
least one option to reschedule the at least one event,” as recited in claim 1
and similarly recited in claims 7 and 13 (App. Br. 10). Specifically,
Appellants argue “the claims require an active determination so as to
perform subsequent actions if a user is affirmatively determined to be
unavailable,” but Levinson “simply perform[s] a loop until a user responds”
{id.).
We are not persuaded. The Examiner finds (Final Act. 5; Ans. 3—4),
and we agree, Levinson “cue[s] the user” for a scheduling response “and
wait[s] three seconds for a response .... If the user has not responded, then
the execution manager may loop back to steps 268 and 270 and re-cue the
6
Appeal 2017-009180
Application 11/829,823
user and wait for a response” (Levinson 169). The Examiner further finds
(Final Act. 8—9; Ans. 6), and we agree, Boss determines if “a proxy recipient
(63) has been designated by the intended-receiver user (61)” to receive a
message and, if so, “a redirection proxy service (65) forward[s] the message
(600) to the designated proxy user (63)” (Boss 142).
Appellants’ argument Levinson does not determine, “active” or
otherwise, whether a user is unavailable in order to perform a subsequent
action (App. Br. 10) is not persuasive. Levinson’s system determines that a
user is unavailable by determining that the user has not responded to a cue;
Levinson’s subsequent re-cue is based on that response determination
(Levinson | 69). Additionally, Appellants do not address the Examiner’s
finding that Boss also teaches the determination of a user’s availability based
on the user’s designation of a proxy, resulting in the subsequent forwarding
of messages to the proxy (Final Act. 8—9 (citing Boss 142); Ans. 6).
Accordingly, we are not persuaded the Examiner erred in finding
Levinson and Boss teach “determining whether the user is available or
unavailable to receive the at least one option to reschedule the at least one
event,” within the meaning of claims 1, 7, or 13.
Issue 3
Appellants contend the Examiner erred in finding Peskin teaches
“identifying a duration of a delay incurred or to be incurred by the user,” as
recited in claim 1 and similarly recited in claims 7 and 13 (App. Br. 10—11).
Specifically, Appellants argue Peskin “do[es] not disclose identifying a
duration of a delay” but instead determines “‘that the user does not have
7
Appeal 2017-009180
Application 11/829,823
sufficient time to reach the appointment destination in time for the
appointment’” {id. (quoting Peskin 198)).
We are not persuaded. As discussed supra, the Examiner finds, and
we agree, Levinson teaches a user identifies a duration of a delay (Final
Act. 3^4; Ans. 4; see Levinson 199 (“the user realizes, unexpectedly that he
will need an additional hour at the library and he will respond to the stop
library cue from the system with a ‘[w]ait 1 hour’ message”)). The
Examiner further finds, and we agree, Peskin “determines an estimated
travel time to [an] appointment destination” (Ans. 5 (citing Peskin Fig. 8);
Final Act. 7 (citing Peskin 197)).
Appellants’ arguments directed to Peskin (App. Br. 10-11) do not
address the Examiner’s finding that Levinson teaches the disputed limitation
(Final Act. 3^4; Ans. 4). Furthermore, we disagree with Appellants that
Peskin does not identify a duration of a delay (App. Br. 10-11). Peskin
determines “a duration of a delay” by estimating the length of time required
for a user to travel to and arrive at a scheduled appointment (Peskin Fig. 8).
Accordingly, we are not persuaded the Examiner erred in finding
Levinson and Peskin teach “identifying a duration of a delay incurred or to
be incurred by the user,” within the meaning of claims 1, 7, or 13.
Issue 4
Appellants contend the Examiner erred in finding Boss teaches “in
response to determining that the user is unavailable to receive the at least
one option to reschedule: identifying an alternate recipient to receive the
option to reschedule,” as recited in claim 1 and similarly recited in claims
8
Appeal 2017-009180
Application 11/829,823
7 and 13 (App. Br. 11—12; Reply Br. 3—4). Specifically, Appellants argue
“the ‘proxy user’ in Boss is fundamentally different than the alternate
recipient as claimed” (App. Br. 11—12; Reply Br. 3). Further, Appellants
argue, in Boss’s “‘offline’ mode of operation, Boss simply never delivers
any messages to an alternate recipient” (App. Br. 12; Reply Br. 4).
Additionally, Appellants argue “Boss contains no discussion of options to
reschedule as Boss is solely concerned with instant messages (i.e., chat
messages)” (App. Br. 11; see Reply Br. 3).
We are not persuaded. As discussed supra, the Examiner finds (Final
Act. 5), and we agree, Levinson teaches “provid[ing] the user with”
rescheduling choices when “there is a conflict in the schedule” (Levinson
1100; see Levinson || 70, 72). Further, we also agree with the Examiner’s
finding (Final Act. 8—9) that Boss teaches a “user that needs to receive but
not be distracted by incoming messages can designate an alternate user to
receive his or her incoming messages” (Boss 135). If the user has
designated an alternate recipient, i.e., “a proxy recipient (63),” then “a
redirection proxy service (65) forward[s] the message (600) to the
designated proxy user (63)” (Boss 142).
Appellants’ arguments that Boss’ “proxy user is never dependent on
the online or offline state of the user and, in contrast to the claimed
invention, can co-exist with a user being online” (App. Br. 11—12; Reply
Br. 3) are not commensurate with the scope of the claim. The claim does not
recite, and, therefore, does not require, that the alternative recipient is
dependent on the user being online, offline, or co-existent. Instead, the
claim only recites that its user is “unavailable” to receive rescheduling
options. Further, the Specification does not define an “unavailable” user, let
9
Appeal 2017-009180
Application 11/829,823
alone use the term “unavailable.” The Specification does describe that “the
system could call a designated alternate, if the user does not want to be
interrupted or if he is out of reach” (Spec. 127). Boss similarly teaches a
user that is “not [to] be distracted by incoming messages can designate an
alternate user to receive his or her incoming messages” so that the user is not
“interrupted” by the messages (Boss ^fl[ 35—36). Further, Boss teaches when
the user has designated a proxy recipient, Boss “do[es] not pass the message
(600) to the originally intended recipient (61),” i.e., messages cannot reach
the user {id. 142). As such, Boss teaches designating an alternative user
when the use is “unavailable” within the scope of the claim, e.g., when the
user does not want to be interrupted or messages cannot reach the user.
Further, Appellants’ arguments discussing Boss’ “‘offline’ mode of
operation” (App. Br. 12; Reply Br. 3 4) are not persuasive because the
Examiner does not rely on Boss’ offline mode of operation to teach the
disputed limitation (Ans. 6). As discussed supra, the Examiner relies on
Boss’ proxy mode of operation to teach the delivery of messages to proxy,
i.e., alternative, recipients.
Additionally, Appellants’ argument that Boss is “concerned with
instant messages (i.e., chat messages)” rather than rescheduling messages
(App. Br. 11; see Reply Br. 3) inappropriately attacks Boss individually
when the rejection is based on the combination of Levinson and Boss. In re
Keller, 642 F.2d 413, 426 (CCPA 1981) (citation omitted). In particular,
Appellants do not address the Examiner’s combination of Levinson’s
teachings, i.e., providing scheduling option messages to a user when there is
a schedule conflict, with Boss’ teachings, i.e., transmitting messages to an
alternative user when the original user is unavailable {see Final Act. 9), to
10
Appeal 2017-009180
Application 11/829,823
teach “an alternate recipient to receive the option to reschedule” when it is
“determin[ed] that the user is unavailable to receive the at least one option to
reschedule”.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Levinson and Boss teaches “in response to determining that
the user is unavailable to receive the at least one option to reschedule:
identifying an alternate recipient to receive the option to reschedule,” within
the meaning of claims 1, 7, and 13.
Issue 5
Appellants contend the Examiner improperly combined Levinson,
Peskin, Raffel, and Boss (App. Br. 12—14; Reply Br. 4—5). Specifically,
Appellants argue “since the goal of Levinson is to aid persons with cognitive
disabilities in daily, personal tasks, there’s no motivation to replace this
priority scheme with the business-oriented priority scheme discussed in
Raffel” and “the primary operation of the Levinson system is not designed
for a ‘businessperson’” (App. Br. 12—13; Reply Br. 3). Appellants also
argue modifying Levinson to “allow[] others to reschedule events . . . would
render Levinson inoperable” (App. Br. 13). further, Appellants argue
Levinson “explicitly teaches away from rescheduling events by third parties
(Reply Br. 5; App. Br. 13). Additionally, Appellants argue “the actual
process described in Boss would render the combination of Levinson,
Peskin[,] and Raffel inoperable” because “the option to reschedule would be
useless as the event underlying the option would have passed” (App. Br.
13-14).
11
Appeal 2017-009180
Application 11/829,823
We are not persuaded. Appellants’ arguments that the Examiner’s
motivation is insufficient because “the goal of Levinson is to aid persons
with cognitive disabilities” (App. Br. 12—13; Reply Br. 3) and that Levinson
is rendered inoperable for its primary purpose of aiding persons with
cognitive disabilities (App. Br. 13) are based on the incorrect premise that
Levinson is inapplicable for people of different abilities. In particular, as the
Examiner correctly points out (Ans. 7), Levinson states that its scheduling
“system may be set-up and optimized for a plurality of users with a plurality
of different needs” (Levinson 172; see Levinson 153 (“Lor a person with a
less severe cognitive disorder, or a businessperson who wants reminders, the
planning and cueing system may be customized for a particular user with a
particular level of planning ability.”)), furthermore, Appellants’ argument
that there is no “discussion of how to reasonably modify Levinson” (Reply
Br. 4) is not persuasive because Levinson provides examples on how to
customize its system for different user abilities (Levinson || 54 (“Lor
example, for a person with a severe cognitive disorder, the system may
continually repeat some cue, such as an audible sound every three
seconds . . . whereas for a typical businessperson, the system may generate
an audible signal only once, or every minute”), 72 (“for a person with a
severe cognitive disorder, the system may automatically resolve a conflict in
the user’s schedule” whereas “for a business user[,] ... the system may
detect conflicts within the schedule, but provide the user with the options
available to resolve the conflict and permit the user to select how to correct
the conflict”), 101).
further, Appellants do not persuade us that Levinson “explicitly
teaches away from rescheduling events by third parties,” i.e., proxy users
12
Appeal 2017-009180
Application 11/829,823
(Reply Br. 5; App. Br. 13). Appellants’ Reply Brief cites to Appellants’
Appeal Brief to support that argument; the cited portions of the Appeal Brief
cite paragraphs 9, 54, and 101 of Levinson. None of those paragraphs
discuss a proxy user, let alone “explicitly” criticize, discredit, or otherwise
discourage allowing a proxy user to reschedule calendar conflicts. In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (to teach away, a reference
must “criticize, discredit, or otherwise discourage the solution”).
Additionally, Appellants’ argument that “the actual process described
in Boss would render the combination of Levinson, Peskin[,] and Raffel
inoperable” because the combination “would result in any alleged options to
reschedule to simply be queued until a user is available” (App. Br. 13—14)
improperly requires the bodily incorporation of features in Boss that the
Examiner’s does not incorporate. The Examiner’s combination does not
incorporate Boss’ message queueing feature; rather, the Examiner relies on
messages redirected to a proxy user (Final Act. 8—9). Nor does Boss require
using its message queueing feature for its proxy service. Indeed, Boss
teaches messages that are redirected to a proxy “may optionally be stored in
a message queue (68) for later access by the originally intended user (61)”
(Boss 142) (emphasis added) — an option the Examiner does not
incorporate.
Accordingly, we are not persuaded the Examiner improperly
combined Levinson, Peskin, Raffel, and Boss. Therefore, we sustain the
rejection of claims 1,7, and 13 under 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Peskin, Raffel, and Boss. It follows, we sustain
the Examiner’s rejection of claims 2, 3, 6, 8, 9, 12, and 17 under 35 U.S.C.
13
Appeal 2017-009180
Application 11/829,823
§ 103(a) as being unpatentable over Levinson, Peskin, Raffel, and Boss, for
which Appellants offer no additional persuasive arguments for patentability
(see App. Br. 14).
DECISION
The Examiner’s rejection of claims 1—3, 6—9, 12, 13, and 17 under 35
U.S.C. § 103(a) as being unpatentable over Levinson, Raffel, Peskin, and
Boss 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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
14