Ex Parte Kohler et alDownload PDFPatent Trial and Appeal BoardAug 21, 201813179245 (P.T.A.B. Aug. 21, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/179,245 07/08/2011 136582 7590 08/23/2018 STEVENS & SHOWALTER, LLP Box AVAYA Inc. 7019 Corporate Way Dayton, OH 45459-4238 FIRST NAMED INVENTOR Joylee E. Kohler 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 411030-US-NP/AVA030PA 1000 EXAMINER GARCIA-GUERRA, DARLENE ART UNIT PAPER NUMBER 3683 NOTIFICATION DATE DELIVERY MODE 08/23/2018 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): pto@sspatlaw.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 JOYLEE E. KOHLER, ANDREW D. FLOCKHART, and ROBERT C. STEINER Appeal2017-006054 Application 13/179 ,245 Technology Center 3600 Before BETH Z. SHAW, JOYCE CRAIG, and JASON M. REPKO, Administrative Patent Judges. SHAW, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. § 134(a) of the Examiner's Final Office Action rejecting claims 1, 3-5, 7, 8, 10-14, 16, 17, 19, 20, and 22-24, all of which are pending on appeal. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 2 1 The real party in interest is Avaya, Inc. App. Br. 2. 2 Our Decision refers to the Appeal Brief filed September 15, 2016 ("App. Br."); Reply Brief filed March 3, 2017 ("Reply Br."); Examiner's Answer mailed January 5, 2017 ("Ans."); Final Office Action mailed April 7, 2016 ("Final Act."); and Specification filed July 8, 2011 ("Spec."). Appeal2017-006054 Application 13/179,245 STATEMENT OF THE CASE Appellants' invention relates to a system and method for scheduling a service agent start time for a desired service completion objective. Spec. Claim 1 is illustrative of Appellants' invention, as reproduced below: 1. A method to schedule a service agent start time for a customer contact with a contact center, comprising: receiving, via a communication channel to the contact center, a customer contact to request service; determining, by a contact center computer, a service completion objective for the customer contact based upon a predetermined percentage service level objective and a characteristic of the customer contact; calculating and storing, by the contact center computer, the service completion objective in a memory; determining, by the contact center computer, a handling time limit based on historical elapsed handling times; subtracting, by the contact center computer, the handling time limit from the service completion objective, to produce the service agent start time; monitoring, by the contact center computer, success rates in achieving service completion objectives; dynamically modifying, by the contact center computer, the service agent start time in response to the monitored success rates; and delivering, by the contact center computer, the customer contact to a service agent within a predetermined time period before the service agent start time, wherein the service completion objective comprises a time objective to complete tasks between an arrival of the customer contact and a resolution of a reason for the customer contact, the tasks comprising: receiving the customer contact; delivering the customer contact to the service agent based on meeting the service agent start time and dependent on a workload and skills of the service agent; 2 Appeal2017-006054 Application 13/179,245 waiting for the service agent to handle the customer contact; and handling the customer contact by the service agent, in order to resolve the reason for the customer contact. REJECTIONS Claims 1, 3-5, 7, 8, 10-14, 16, 17, 19, 20, and 22-24 stand rejected under 35 U.S.C. § 101 because the claimed invention is directed to ineligible subject matter. Final Act. 12-15. Claims 1, 4, 5, 7, 10, 11, 14, 17, 19, and 22 stand rejected under 35 U.S.C. § 103 as unpatentable over Shaffer (US 2006/0239440 Al, Oct. 26, 2006), Lenard (US 2003/0198337 Al, Oct. 23, 2003), Jensen (US 6,741,698 Bl, May 25, 2004), and Afzal (US 2010/0111288 Al, May 6, 2010). Final Act. 16-37. Claims 3, 13, 16, and 24 stand rejected under 35 U.S.C. § 103 as unpatentable over Shaffer, Lenard, Jensen, Afzal, and Beckstrom (US 2004/0234066 Al, Nov. 25, 2004). Final Act. 38--41. Claims 12 and 23 stand rejected under 35 U.S.C. § 103 as unpatentable over Shaffer, Lenard, Jensen, Afzal, and Davoust (US 2008/0196035 Al, Aug. 14, 2008). Final Act. 43--45. 3 CONTENTIONS AND ANALYSIS SECTION 101 REJECTION The Examiner finds claims 1, 3-5, 7, 8, 10-14, 16, 17, 19, 20, and 22- 24 are directed to ideas that have been identified as abstract by our 3 The Examiner withdrew the § 103 rejection of claims 8 and 20 in the Answer. Ans. 33. 3 Appeal2017-006054 Application 13/179,245 reviewing court. Final Act. 12-15. In particular, the Examiner finds that the abstract idea underlying these claims is scheduling service agents. Final Act. 13. The Examiner also finds additional elements recited in the claims do not amount to significantly more than the abstract idea itself. Final Act. 14; Ans. 41--46. According to the Examiner, the claims require no more than performing generic computer functions. Id. Appellants present several arguments against the 35 U.S.C. § 101 rejection. App. Br. 11-21. Appellants contend the claims are not directed to an abstract idea because the claims provide a technological solution to a problem. Id. at 13-14. Appellants also contend the claims recite significantly more than an abstract idea. Id. at 15-16. We do not find Appellants' arguments persuasive. Instead, we find the Examiner has provided a comprehensive response to Appellants' arguments supported by a preponderance of evidence. Ans. 36--46. As such, we adopt the Examiner's findings and explanations provided therein. Id. At the outset, we note the Supreme Court has long held that "[l]aws of nature, natural phenomena, and abstract ideas are not patentable." Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quoting Assoc.for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). "The 'abstract ideas' category embodies 'the longstanding rule that '[a]n idea, of itself, is not patentable."" Id. at 2355 (alteration in original) (quoting Gottschalkv. Benson, 409 U.S. 63, 67 (1972)). In Alice, the Supreme Court set forth an analytical "framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Id. at 2355 (citing Mayo Collaborative Servs. v. Prometheus 4 Appeal2017-006054 Application 13/179,245 Labs., Inc., 566 U.S. 66 (2012)). The first step in the analysis is to "determine whether the claims at issue are directed to one of those patent- ineligible concepts," such as an abstract idea. Id. (citing Mayo, 566 U.S. at 77-78). If the claims are directed to a patent-ineligible concept, the second step in the analysis is to consider the elements of the claims "individually and 'as an ordered combination"' to determine whether there are additional elements that "'transform the nature of the claim' into a patent-eligible application." Id. (quoting Mayo, 566 U.S. at 79, 78). In other words, the second step is to "search for an 'inventive concept'-i.e., an element or combination of elements that is 'sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself."' Id. (alteration in original) (quoting Mayo, 566 U.S. at 72- 73). The prohibition against patenting an abstract idea "'cannot be circumvented by attempting to limit the use of the formula to a particular technological environment' or adding 'insignificant postsolution activity."' Bilski v. Kappas, 561 U.S. 593, 610-11 (2010) (citation omitted). Turning to the first step of the Alice inquiry, we agree with the Examiner that Appellants' claims are directed to an abstract idea of scheduling service agents. Final Act. 13. All the steps recited in Appellants' claims, including, for example: (i) "receiving ... a customer contact," (ii) "determining ... a service completion objective for the customer contact," (iii) "calculating and storing ... the service completion objective," (iv) "determining ... a handling time limit," and (v) "delivering ... the customer contact to a service agent," are abstract processes of receiving, storing, and delivering data. 5 Appeal2017-006054 Application 13/179,245 Our reviewing court finds an abstract idea in receiving, storing, and delivering data. See Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) ("collecting information, analyzing it, and displaying certain results of the collection and analysis" is abstract); In re Salwan, 681 F. App'x 938, 941 (Fed. Cir. 2017) (nonprecedential) (affirming the rejection under § 101 of claims directed to "storing, communicating, transferring, and reporting patient health information," noting that "while these concepts may be directed to practical concepts, they are fundamental economic and conventional business practices"); Cyberfone Sys., LLC v. CNN Interactive Grp., Inc., 558 F. App'x 988, 992 (Fed. Cir. 2014) (nonprecedential) ("using categories to organize, store, and transmit information is well-established"). Similarly, all the steps executed by the pending claims are abstract processes of receiving, storing, and delivering data. Turning to the second step of the Alice inquiry, we find nothing in Appellants' claims that adds anything "significantly more" to transform them into a patent-eligible application of the abstract idea. Alice, 134 S. Ct. at 2357. The claimed steps are ordinary steps in data analysis and are recited in an ordinary order. We are not persuaded by Appellants' unsupported attorney argument that the claims represent a specific solution to a technology based problem. App. Br. 14. Appellants do not persuade us why the claims or Specification provide specific, technical improvements. Rather, the Specification explains that the claimed systems include a generic programming and processing environment. Spec. ,r,r 35, 39-41. Thus, the Specification does not describe the system as made up of special-purpose or specially configured computer 6 Appeal2017-006054 Application 13/179,245 components, but rather, as a general-purpose computer that includes generic components. As a result, nothing recited by the claims "offers a meaningful limitation beyond generally linking 'the use of the [ method] to a particular technological environment,' that is, implementation via computers." Alice 134 S. Ct. at 2360 (alteration in original) (quoting CLS Bankint'l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1291 (Fed. Cir. 2013) (Lourie, J., concurring)). As recognized by the Supreme Court, "the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent- eligible invention." Alice, 134 S. Ct. at 2358; see id. at 2359 (concluding claims "simply instruct[ing] the practitioner to implement the abstract idea of intermediated settlement on a generic computer" are not patent eligible); see also Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715-16 (Fed. Cir. 2014) (claims merely reciting abstract idea of using advertising as currency as applied to particular technological environment of the Internet are not patent eligible); Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1344--45 (Fed. Cir. 2013) (claims reciting "generalized software components arranged to implement an abstract concept [ of generating insurance-policy-related tasks based on rules to be completed upon the occurrence of an event] on a computer" are not patent eligible); Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333-34 (Fed. Cir. 2012) ("[ s ]imply adding a 'computer aided' limitation to a claim covering an abstract concept, without more, is insufficient to render [a] claim patent eligible"); Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1056 (Fed. Cir. 2017) (generic computer elements did not represent irnprovement in cornputer technology but rather were invoked merely as 7 Appeal2017-006054 Application 13/179,245 tools, and did not transform the claims into significantly more than claims to abstract idea itself); Elec. Power Grp., 830 F.3d at 1351 (rejection affirmed for a method of performing real-time performance monitoring of an electric power grid because "the claims do not go beyond requiring the collection, analysis, and display of available information in a particular field ... over conventional computer and network technology"). Contrary to Appellants' arguments (see App. Br. 12), the claims are neither rooted in computer technology as outlined in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), nor do they seek to improve any type of computer capabilities, such as a "self-referential table for a computer database" outlined in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016). "[M]erely 'configur[ing]' [a] generic computer[] in order to 'supplant and enhance' an otherwise abstract manual process is precisely the sort of invention that the Alice Court deemed ineligible for patenting." Credit Acceptance Corp., 859 F.3d at 1056. Appellants overlook that "the focus of the claims is not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools." Elec. Power Grp., 830 F.3d at 1354. In this case, as in Electric Power Group, the claims do not even require a new source or type of information, or new techniques for analyzing it. Id. at 1355. The scheduling of a service agent start time for a customer contact with a contact center by itself does not transform the otherwise-abstract processes of information collection and analysis. Appellants further contend that the claims are patent-eligible because, like the claims in Bascom Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), the present claims impose meaningful 8 Appeal2017-006054 Application 13/179,245 limits. App. Br. 15-16. Appellants' argument is unpersuasive. The claims' invocation of computers does not transform the claimed subject matter into patent-eligible applications. Elec. Power Grp., 830 F.3d at 1355. As in Electric Power Group, the claims at issue do not require any nonconventional computer, network, or display components, or even a "non- conventiona1 and non-generic arrangement of known, conventional pieces," but merely call for performance of the scheduling functions ''on a set of generic computer components." Bascom, 827 F.3d at 1349----52. Given that the claims do not recite an improvement to the technological implementation of the abstract idea, Appellants' reliance on Bascom does not apprise us of error in the Examiner's finding that the claims do not recite additional limitations amounting, individually or as an ordered combination, to significantly more than the abstract idea. Appellants further argue that the claims are not directed to an abstract idea because the claims do not merely automate an existing process, similar to the patent-eligible claims in McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016). Reply Br. 3. Appellants' argument is unpersuasive. In McRO, the Federal Circuit found that "the claims themselves set out meaningful requirements for the first set of rules: they 'define[] a morph weight set stream as a function of phoneme sequence and times associated with said phoneme sequence."' 837 F.3d at 1313 (alteration in original) (citation omitted). The Federal Circuit further explained that "[t]he specific, claimed features of these rules allow for the improvement realized by the invention." Id. 9 Appeal2017-006054 Application 13/179,245 The present claims are distinguishable from the patent-eligible claims in McRO. The claims do not define meaningful requirements for any "specific rules" that are remotely analogous to the meaningful requirements for the first set of rules in McRO. Claims App 'x. Consequently, we fail to see how these claims result in an improvement. Because Appellants' claims are directed to a patent-ineligible abstract concept and do not recite something "significantly more" under the second prong of the Alice analysis, we sustain the Examiner's rejection of these claims under 35 U.S.C. § 101 as being directed to non-statutory subject matter in light of Alice and its progeny. SECTION 103 REJECTION Appellants argue Shaff er fails to teach or suggest using items to produce a service agent start time such that the customer contact is delivered "to the service agent within a predetermined time period before the service agent start time," as recited in claim 1. App. Br. 22. In particular, Appellants argue that in the claimed invention, rather than delivering the email contact to an agent immediately, it is not delivered until a predetermined time period before the service agent start time. Id. The Examiner finds that Shaffer teaches the disputed limitation of "delivering, by the contact center computer, the customer contact to a service agent within a predetermined time period before the service agent start time" because Shaffer explains that while a customer is waiting for an agent, its system may perform one or more of several functions. Ans. 46 ( citing Shaffer ,r 33). After an incoming call is received, the contact is assigned before the agent start time. We agree with Appellants, however, that the cited portion 10 Appeal2017-006054 Application 13/179,245 of Shaffer teaches distributing the call to the appropriate agent "[a]s soon as a suitable agent becomes available," and does not appear to teach within a "predetermined time period before the service agent start time," as recited in the claims. Shaffer ,r 33. Accordingly, on this record, we do not sustain the Examiner's§ 103 rejection of claim 1, or independent claim 14, which recites a similar limitation. Further, we do not sustain the Examiner's rejection of dependent claims 3-5, 7, 10-14, 16, 17, 19, and 22-24 because the Examiner does not find that the additional references cure the deficiencies discussed above. CONCLUSION On the record before us, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 1, 3-5, 7, 8, 10-14, 16, 17, 19, 20, and 22-24 under 35 U.S.C. § 101. On the record before us, we conclude the Examiner erred in rejecting claims 1, 3-5, 7, 10-14, 16, 17, 19, and 22-24 under 35 U.S.C. § 103. DECISION Because we affirm at least one ground of rejection with respect to each claim on appeal, we affirm the Examiner's rejection of claims 1, 3-5, 7, 8, 10-14, 16, 17, 19, 20, and 22-24. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 ). AFFIRMED 11 Copy with citationCopy as parenthetical citation