11210944 (P.T.A.B. Feb. 28, 2014)

Ex Parte Fleming et al

Patent Trial and Appeal BoardFeb 28, 2014

11210944 (P.T.A.B. Feb. 28, 2014)

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. 11/210,944 08/24/2005 Jay Fleming HARTFORD-12-US 5218 45722 7590 02/28/2014 Howard IP Law Group P.O. Box 226 Fort Washington, PA 19034 EXAMINER SINGH, GURKANWALJIT ART UNIT PAPER NUMBER 3623 MAIL DATE DELIVERY MODE 02/28/2014 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 JAY FLEMING, LORRAINE KULIK-BENDER, NORINE MCDEVITT, NANCY DALES, and ANN GRAZIANO ___________ Appeal 2011-013364 Application 11/210,944 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, MEREDITH C. PETRAVICK, and THOMAS F. SMEGAL, Administrative Patent Judges. PETRAVICK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-013364 Application 11/210,944 2 STATEMENT OF THE CASE Jay Fleming et al. (Appellants) seek our review under 35 U.S.C. § 134 of the final rejection of claims 1-23, 26-28, 31, 32, and 34-39. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We REVERSE.1 THE INVENTION Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A computer method for managing performance of a customer service representative comprising the steps of: collecting quantitative data from customer contacts and storing the collected data from customer contacts by the processor in a computer database; collecting qualitative data from the service representative’s performance and storing by the processor the qualitative data in a computer database; collecting quantitative data from the service representative[’]s performance and storing by the processor the quantitative data in the computer database; 1 Our decision will make reference to Appellants’ Appeal Brief (“App. Br.,” filed Feb. 28, 2011) and Reply Brief (“Reply Br.,” filed Jul. 5, 2011), and the Examiner’s Answer (“Ans.,” mailed May 5, 2011). Appeal 2011-013364 Application 11/210,944 3 generating by the processor a value of a quantitative performance score based on the quantitative data and a value of a qualitative performance score based on the qualitative data; and[] paying the representative an incentive financial payout in accordance with a payout grid, the payout grid having a first axis representing values of the quantitative performance score in a plurality of preselected ranges and a second axis representing values of the qualitative performance score in a plurality of preselected ranges, a payout monetary amount being identified at each intersection of the respective preselected ranges. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Berkson Shtivelman McIlwaine US 6,049,779 US 2002/0060988 A1 US 2003/0086555 A1 Apr. 11, 2000 May 23, 2002 May 8, 2003 Sturman et al., Is It Worth It To Win The Talent War? Evaluating the Utility of Performance-Based Pay, Personnel Psychology, 56, 4; ABI/INFORM Global, 997 (Winter 2003) (hereinafter “Sturman”). The following rejections are before us for review: 1. Claims 1-7, 9-18, 22, 23, 26-28, 31, 32, and 34-39 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Berkson and Sturman. 2. Claims 8, 19, and 20 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Berkson, Sturman, and McIlwaine. Appeal 2011-013364 Application 11/210,944 4 3. Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Berkson, Sturman, and Shtivelman. ISSUES The issue is the prior art teaches: paying the representative an incentive financial payout in accordance with a payout grid, the payout grid having a first axis representing values of the quantitative performance score in a plurality of preselected ranges and a second axis representing values of the qualitative performance score in a plurality of preselected ranges, a payout monetary amount being identified at each intersection of the respective preselected ranges. Claim 1. FINDINGS OF FACT We find that the findings of fact, which appear in the Analysis below, are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). ANALYSIS The rejection of claims 1-7, 9-18, 22, 23, 26-28, 31, 32, and 34-39 under § 103(a) as being unpatentable over Berkson and Sturman Appellants argue that Sturman does not teach claim 1’s step of: paying the representative an incentive financial payout in accordance with a payout grid, the payout grid having a first axis representing values of the quantitative performance score in a plurality of preselected ranges and a second axis App App App does adm finan Figu step. issue desc mult Tabl Tabl Strat for-p label strat incre eal 2011-0 lication 11 re sc m in . Br. 10-16 not teach its that Ber cial payou re 1, page Ans. 6-7 We agre , and, in p ribes a stu iple pay-fo es, Table 1 e 1 is titled egy.” Tab erformanc ed with pe egy and pe ase (e.g., 4 13364 /210,944 presenting ore in a pl onetary am tersection , Reply Br the particu kson does t in accor 1003 thru ; see also A e with App articular, d dy of the c r-perform is the mo “Pay Stra le 1’s vert e strategie rformance rformance %) and th values of urality of p ount bein of the resp . 7-10. Pa lars of the not teach dance with page 1010 ns. 27-30 ellants th oes not te ost-benefi ance polic st pertinen tegies and ical axis h s. See Stu ratings. I rating pai e perform 5 the qualita reselected g identifie ective pre rticularly, claimed p paying the the claim , and Tabl . at Sturman ach the cla t analysis ies. See St t and is re Estimate as labels th rman 100 d. For eac r, Table 1 ance speci tive perfo ranges, a d at each selected ra Appellant ayout grid represent ed payout es 1-7 of S does not imed payo of implem urman 999 produced d 4-Year P at describ 5. Table 1 h pay-for displays th fic pay lev rmance payout nges. s argue th . Id. Exa ative an in grid and c turman to teach the s ut grid. S enting one . Of the below. ay Levels e three dif ’s horizon -performan e average el extrapo at Sturman miner centive ites to teach this tep at turman of cited for Each ferent pay tal axis is ce pay lated for - Appeal 2011-013364 Application 11/210,944 6 four future years (e.g., $47,983). Sturman 1005-1006. We fail to see how Sturman’s Table 1 teaches the claimed payout grid having a first axis and a second axis, as particularly claimed, and a payout monetary amount at each intersection. Independent claims 26 and 34 recite similar limitations and are rejected using the same rationale. See Ans. 16-19, 26. Accordingly, the rejection of claims 1, 26, 34, and claims 2-7, 9-18, 22, 23, 27, 28, 31, 32, and 35-39, dependent thereon, under 35 U.S.C. § 103(a) as being unpatentable over Berkson and Sturman is reversed. The rejection of claims 8, 19, and 20 under § 103(a) as being unpatentable over Berkson, Sturman, and McIlwaine and the rejection of claim 21 under § 103(a) as being unpatentable over Berkson, Sturman, and Shtivelman These rejections are directed to claims, which depend indirectly from claim 1, whose rejection we have reversed above. For the same reasons, we will not sustain the rejections of claims 8, 19, 20, and 21 over the cited prior art. Cf. In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (“[D]ependent claims are nonobvious if the independent claims from which they depend are nonobvious.”). DECISION The decision of the Examiner to reject claims 1-23, 26-28, 31, 32, and 34-39 is reversed. REVERSED Appeal 2011-013364 Application 11/210,944 7 mls