Avaya Inc.

Patent Trials and Appeals Board

Nov 30, 2021

2020006003 (P.T.A.B. Nov. 30, 2021)

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.
15/335,735 10/27/2016 Stephen Whynot 4366-1006 8622
48500 7590 11/30/2021
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
AGUIAR, JOHNNY B
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
11/30/2021 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):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte STEPHEN WHYNOT, MEHMET BALASAYGUN,
and MANISH CHATERJEE
____________________

Appeal 2020-006003
Application 15/335,735
Technology Center 2400
____________________

Before JOSEPH L. DIXON, DAVID M. KOHUT, and
JON M. JURGOVAN, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, and 7–18.2 (See Final Act. 1–2.)
We have jurisdiction under 35 U.S.C. § 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Avaya Inc. (Appeal
Br. 2.)
2 The Examiner indicates “Claims 3–6 and 19–20 are objected to as being
dependent upon a rejected base claim, but would be allowable if rewritten in
independent form including all of the limitations of the base claim and any
intervening claims.” (Final Act. 2.)
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We AFFIRM.3

CLAIMED SUBJECT MATTER
The claims are directed to a system and method for “exchanging
media through an edge server between communication networks” by
performing “media tunneling through [the] edge server.” (Spec. ¶ 2; Title
(capitalization altered).)
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A system comprising:
a session border controller coupled with a first
communication network and a second communication network,
the session border controller comprising a processor and a
memory, the memory comprising a set of instructions stored
therein which, when executed by the processor, causes the
processor to:
receive, from a calling endpoint on the first
communication network during initiation of a call session
between the calling endpoint and a remote endpoint on the
second communication network using a signaling channel, a
message to the remote endpoint to check media connectivity in
the call session,
determine, based on the message from the calling
endpoint, whether media connectivity is available between the
calling endpoint and the remote endpoint,
in response to determining media connectivity is
available between the calling endpoint and the remote endpoint,

3 Our Decision refers to the Specification (“Spec.”) filed October 27, 2016,
the Final Office Action (“Final Act.”) mailed November 5, 2019, the Appeal
Brief (“Appeal Br.”) filed May 4, 2020, the Supplemental Appeal Brief
(“Appeal Br.”) filed May 28, 2020, the Examiner’s Answer (“Ans.”) mailed
June 19, 2020, and the Reply Brief filed August 19, 2020 (“Reply Br.”).
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conduct the call session between the calling endpoint and the
remote endpoint using the signaling channel and without using
a media tunnel, and
in response to determining media connectivity is not
available between the calling endpoint and the remote endpoint,
conduct the call session between the calling endpoint and the
remote endpoint using the signaling channel and the media
tunnel, wherein media connectivity is not available because
media connectivity is blocked by a firewall, and wherein the
media tunnel comprises a port used for HyperText Transfer
Protocol (HTTP) data traffic to transfer media between the
calling endpoint and the session border controller without using
HTTP.
(Supp. Appeal Br. 2 (Claims App.).)

REFERENCES
The prior art relied upon by the Examiner is:
Pelous et al. US 2008/0192108 A1 Aug. 14, 2008
(“Pelous”)

Lavoie et al. US 2009/0238168 A1 Sept. 24, 2009
(“Lavoie”)

Morken et al. US 2012/0120852 A1 May 17, 2012
(“Morken”)

Wang et al. US 2015/0188882 A1 July 2, 2015
(“Wang”)

Asveren et al. US 2017/0180484 A1 June 22, 2017
(“Asveren”)

REJECTIONS
Claims 1, 7, 8, 13, and 14 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Lavoie in view of Wang. (Final Act. 4–6.)
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Claims 2, 9–11, and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lavoie in view of Wang and Asveren. (Final Act. 6–10.)
Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Lavoie in view of Wang, Asveren, and Pelous. (Final Act. 10–11.)
Claims 15–17 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lavoie in view of Wang and Morken. (Final Act. 11–13.)

ANALYSIS
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985–86 (Fed. Cir.
2006). We review the appealed obviousness rejections of claims 1, 2, and
7–18 for error based upon the issues identified by Appellant and in light of
the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential), (cited with approval in In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s
practice to require an applicant to identify the alleged error in the examiner’s
rejections.”)). After considering the evidence presented in this Appeal and
each of Appellant’s arguments, we are not persuaded that Appellant
identifies reversible error. Thus, we affirm the Examiner’s obviousness
rejections for the reasons expressed in the Final Office Action and the
Answer. We add the following primarily for emphasis.
With respect to claim 1, Appellant contends the art cited by the
Examiner does not teach or suggest a session border controller that
“conduct[s] the call session between the calling endpoint and the remote
endpoint using the signaling channel and the media tunnel” when media
connectivity between endpoints is not available “because media connectivity
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is blocked by a firewall, and wherein the media tunnel comprises a port used
for HyperText Transfer Protocol (HTTP) data traffic to transfer media
between the calling endpoint and the session border controller without using
HTTP,” as claimed. (Appeal Br. 6–8; Reply Br. 2–4.) In particular,
Appellant argues Wang’s TURN (Traversal Using Relays around a Network
Address Translation) server does not teach the claimed session border
controller (that uses a media tunnel port used for HTTP data traffic, to
transfer media without using HTTP), as:
the Wang reference discloses sending media over TURN using
TCP, [but] the claims are not so limited. Additionally, the Wang
reference discusses a TURN server, not a session border
controller. Therefore, unlike the claimed invention, the TURN
server, not the session border controller would handle the
firewall traversal. The session border controller of the claimed
invention can communicate with a HTTP signaling gateway, a
Session Initiation Protocol (SIP) signaling network, and a remote
endpoint. . . . A TURN server and session border controller are
not equivalent. Additionally, the Wang reference only considers
TURN servers that support firewall traversal, in other words a
TURN server that does not support firewall traversal would not
be able to use the media tunnel.

(Appeal Br. 6–7 (citing Spec. ¶ 37); see also Reply Br. 3.) Appellant further
argues “one would not be motivated to combine the Lavoie reference dealing
with SIP connections and the Wang reference discussing TURN server
connections.” (Appeal Br. 7; see also Reply Br. 3.) Appellant asserts the
Examiner’s combination of Lavoie and Wang is improper because “Lavoie
and Wang . . . are not directed at the same goal” and “in the Lavoie reference
there is no need to use an HTTP port to transfer media communications.”
(Appeal Br. 7; Reply Br. 3.) Thus, Appellant contends the Examiner’s
rejection is based on hindsight. (Appeal Br. 7; Reply Br. 4.)
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We are not persuaded by Appellant’s arguments. At the outset, we
note Appellant has submitted arguments not commensurate with the
language in claim 1. (Ans. 13.) For example, Appellant argues a “media
tunnel [that] comprises using a port used for HyperText Transfer Protocol
(HTTP) data traffic to transfer media between the calling endpoint and the
session border controller using a protocol different from and independent of
HTTP,” but claim 1 actually recites a port used for HTTP data traffic “to
transfer media between the calling endpoint and the session border controller
without using HTTP.” (See Appeal Br. 8 (emphasis added); Supp. Appeal
Br. 2 (claim 1) (emphasis added).)
Appellant further argues that the “Wang reference discusses a TURN
server, not a session border controller,” and submits that a “TURN server
and session border controller are not equivalent.” (Appeal Br. 6–7; Reply
Br. 3.) Appellant’s arguments are unpersuasive because Appellant does not
sufficiently explain how or why Wang’s TURN server is dissimilar to
Appellant’s claimed session border controller. (Ans. 15.) For example,
Appellant does not explain why the Examiner’s findings of similarity
between the session border controller and Wang’s TURN server (see Ans.
15) would be incorrect or inaccurate. Appellant references paragraph 37 in
the Specification—which mentions “a Session Border Controller (SBC) 210
such as one or more of the edge servers” (see Spec. ¶ 37)—but Appellant
does not explain how Wang’s TURN server would differ from such a
“Session Border Controller.”4 (See Appeal Br. 7 (citing Spec. ¶ 37); Reply

4 Appellant’s Specification further explains that an edge server is used “for
exchanging media . . . between different communication networks” and “can
be communicatively coupled with both the open network 110 and private
network 111.” (See Spec. ¶¶ 4, 27, 29.) We observe that Wang’s TURN
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Br. 3.) As noted by the Examiner, Wang’s “TURN server 406 is an
intermediate device that performs firewall traversal and controls a call
between a first User Equipment (UE) 402 and a second User Equipment
(UE) 402,” and when:
the TURN server supports firewall traversal, e.g., it supports
TURN over TCP on port 80, the VoIP server 406 can change the
TURN p-candidate returned in the “200 OK” message 550 to
“tun-sry 2.2.2.2 tcp 80”. This tells the first UE 402 that it can
send media over TURN using TCP on port 80 (step 585).
Because the TURN/media traffic looks like HTTP, the
NAT/Firewall 404 [(which blocks UDP and only allows HTTP
(TCP/80) and HTTPS (TCP/443) to pass through)] will let it go
through, and achieves firewall traversal.

(Ans. 15 (citing Wang ¶ 63, Fig. 5); Final Act. 5; Wang ¶ 63.) The
Examiner finds this description of the TURN server supports a finding that
the TURN server teaches the claimed “session border controller” that
conducts a call session via a media tunnel’s port used for HTTP data traffic
to transfer media “without using HTTP” (as recited in claim 1). (Ans. 14–
15.)
Appellant further argues “[t]he session border controller of the
claimed invention can communicate with a HTTP signaling gateway, a
Session Initiation Protocol (SIP) signaling network, and a remote endpoint”
(see Appeal Br. 7), but claim 1 does not specify that the session border
controller communicates with a SIP signaling network. Instead, claim 1

server (integrated into VoIP signaling server 406) is similarly used for
exchanging media between networks (e.g., between peers’ private networks
and intervening public networks illustrated in Wang’s Fig. 5)
communicatively coupled to the TURN server. (See Wang ¶¶ 32, 63,
Fig. 5.)
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recites the session border controller that communicates with a remote
endpoint, and with a port used for HTTP data traffic, which the TURN
server of Wang also does. (See Wang ¶ 63, Fig. 5; Ans. 14–15.) Finally,
Appellant argues “the Wang reference discloses sending media over TURN
using TCP, [but] the claims are not so limited” (see Appeal Br. 6).
Appellant’s claim 1, however, does not preclude “sending media over
TURN using TCP” (as Appellant argues, see id.). (Ans. 14–15.)
We are also unpersuaded by Appellant’s argument that “it would not
have been obvious to one of ordinary skill in the art to combine elements of
Lavoie and Wang, as the references are not directed at the same goal.”
(Appeal Br. 7 (emphasis added); see also Reply Br. 4.) To the extent that
both Lavoie and Wang seek to improve VoIP communication, they share the
same goals and concerns. (See Lavoie ¶¶ 3, 25, 82; Wang ¶¶ 3, 20, 63.) For
example, Lavoie describes a communication node and method for improving
VoIP call sessions between caller and callee devices communicating over
“protocols that allow signaling over the Internet Protocol for voice and/or
multimedia communications.” (See Lavoie ¶¶ 2–3, 25, 27, 82; see also Final
Act. 4–5 (citing Lavoie ¶¶ 3, 82).) Wang describes a server and method for
improving call quality by performing firewall traversal so that media packets
of VoIP calls are not blocked by the firewalls between caller and callee
devices. (See Wang ¶¶ 3, 20, 63; Final Act. 5 (citing Wang ¶ 63).)
Appellant also argues a skilled artisan “would not be motivated to
combine the Lavoie reference dealing with SIP connections and the Wang
reference discussing TURN server connections” and “would not need to
modify Lavoie as argued by the Examiner, since in the Lavoie reference
there is no need to use an HTTP port to transfer media communications.”
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(Appeal Br. 7; Reply Br. 3–4.) As such, Appellant contends the Examiner’s
rejection is based on hindsight. (Appeal Br. 7; Reply Br. 4.) However, the
Examiner has provided articulated reasoning with underpinnings for
incorporating Wang’s firewall traversal through an HTTP (TCP/80) port
into Lavoie’s VoIP communication scheme. (See Ans. 14, 16.) In
particular, the Examiner finds actual teachings and reasons to combine
within the cited references, showing the knowledge was within the level of
ordinary skill of an artisan at the time the claimed invention was made. (See
id.) Appellant did not persuasively illustrate that any such knowledge was
gleaned only from Appellant’s disclosure, and did not support the lack of
motivation arguments by persuasive evidence or reasoning. See In re Cree,
818 F.3d 694, 702, n.3 (Fed. Cir. 2016) (Appellant’s hindsight argument is
of no moment where the Examiner provides a sufficient, non-hindsight
reason to combine the references). For example, Appellant’s arguments—
that a skilled artisan would not have combined the elements of Lavoie and
Wang and “would not need to modify Lavoie as argued by the Examiner,
since in the Lavoie reference there is no need to use an HTTP port to transfer
media communications” (see Appeal Br. 7)—do not explain why the
Examiner’s reasoning (see Ans. 14, 16) is deficient or erroneous. Rather,
Appellant relies on attorney argument, without persuasive evidence or
reasoning supporting Appellant’s assertions that the Examiner’s combination
is improper. Attorney arguments and conclusory statements that are
unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984); Ex parte Belinne, No. 2009-004693,
2009 WL 2477843, at *3–4 (BPAI Aug. 10, 2009) (informative), available
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at
https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/inform/fd0
9004693.pdf; see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
With respect to the argument that a skilled artisan “would not be
motivated to combine the Lavoie reference dealing with SIP connections and
the Wang reference discussing TURN server connections” (see Appeal Br.
7), we again note that the references do not appear to be as restricted or
dissimilar as Appellant argues. Both Lavoie and Wang are concerned with
protocols that enable voice communication over the Internet. (See Lavoie
¶ 27 (“Although reference is made to RFC3261 throughout the present
specification, the latter is not limited to any version of SIP, but is rather
directed to all similar protocols that allow signaling over the Internet
Protocol for voice and/or multimedia communications”); Wang ¶ 65
(referencing “call control protocols such as H.323, SIP, or the like which
defines voice communication procedures (e.g., making and receiving
calls)”).)
Thus, Appellant has failed to clearly distinguish the claimed invention
over the prior art relied on by the Examiner. Thus, we are not persuaded of
Examiner error and sustain the Examiner’s rejection of independent claim 1,
and independent claims 8 and 14 reciting similar limitations and argued for
the same reasons. (Appeal Br. 5, 8.) We also sustain the Examiner’s
rejections of dependent claims 2, 7, 9–13, and 15–18, not separately argued.

CONCLUSION
The Examiner’s obviousness rejections of claims 1, 2, and 7–18 are
AFFIRMED.
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In summary:
Claims
Rejected
35 U.S.C.
§ 
Reference(s)/
Basis
Affirmed Reversed
1, 7, 8, 13, 14 103 Lavoie, Wang 1, 7, 8, 13, 14
2, 9–11, 18 103 Lavoie, Wang,
Asveren
2, 9–11, 18
12 103 Lavoie, Wang,
Asveren, Pelous
12
15–17 103 Lavoie, Wang,
Morken
15–17
Overall
Outcome
1, 2, 7–18

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