Ex Parte LI et al

Patent Trial and Appeal Board

Oct 12, 2017

13245039 (P.T.A.B. Oct. 12, 2017)

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.
13/245,039 09/26/2011 Lei Li 20110825-US-NP 3642
41030 7590 10/20/20:
Xerox Corporation
c/o ORTIZ & LOPEZ, PLLC
P. O. BOX 4484
ALBUQUERQUE, NM 87196-4484
EXAMINER
ROTARU, OCTAVIAN
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
10/20/2017 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):
docketing @ olpatentlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEI LI, TONG SUN, and WEI PENG
Appeal 2016-002934
Application 13/245,0391
Technology Center 3600
Before ANTON W. FETTING, BRUCE T. WIEDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35U.S.C. § 134 from the
Examiner’s final rejection of claims 41—43. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Xerox Corporation.
(Appeal Br. 1.)
Appeal 2016-002934
Application 13/245,039
CLAIMED SUBJECT MATTER
Appellants’ claimed invention relates generally to “an improved
customer relationship management effectiveness measurement method and
system.” (Spec. 1 8.)
All of the claims on appeal, claims 41—43, are independent
claims. Claim 41 is illustrative. It recites:
41. A method for simultaneously capturing topical and
sentimental distance in a conversation history between an agent
and customers to evaluate engagement effectiveness of said
agent with said customers, the method comprising:
calculating, by a special purpose computer, a Kullback-
Leibler divergence of two probabilistic distributions of the
conversation history at two continuous time frames between said
agent and said customers, by sequentially summing:
a mathematical product between a topic distribution
of the conversation history containing a particular word in the
topic, and
a logarithmic ratio between sentiment distributions
at the two continuous time frames corresponding to said
particular word in said topic further weighted by parameters
corresponding to other users influenced by said customers whose
message posts in the social media contain said particular word;
counting a number of positive and negative words above a
threshold to quantify, by the special purpose computer, a
sentiment change using another calculated ratio of:
a difference between the number of the positive and
negative words in the two continuous time frames, and
a summation between the number of the positive and
negative words in the two continuous time frames;
capturing, by the special purpose computer, the topical and
sentimental distance simultaneously by adding:
the Kullback-Leibler divergence of the two
probabilistic distributions of the of [sic] conversation history
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further weighted by a parameter controlling an importance of the
topical and sentimental distance, with
the quantified sentiment change further weighted by
a unitary mathematical subtraction of said controlling parameter;
evaluating said agent engagement effectiveness by using
the simultaneous capturing of the topical and sentimental
distance and a time-sensitive pyramid kernel function of implicit
topical and sentimental correspondences between daily
conversations of said agent with said customers.
REJECTION
Claims 41—43 are rejected under 35U.S.C. § 101 as directed to non-
statutory subject matter.
ANALYSIS
In 2014, the Supreme Court decided Alice Corp. Pty. Ltd. v. CIS Bank
Int’l, 134 S. Ct. 2347 (2014). Alice applies a two-part framework, earlier set
out in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66
(2012), “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 134 S. Ct. at 2355.
Under the two-part framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. If the claims
are determined to be directed to a patent-ineligible concept, then the second
part of the framework is applied to determine if “the elements of the
claim . . . contain[] an ‘inventive concept’ sufficient to ‘transform’ the
claimed abstract idea into a patent-eligible application.” Id. at 2357 (citing
Mayo, 566 U.S. at 72-73, 79).
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Appeal 2016-002934
Application 13/245,039
With regard to part one of the Alice framework, the Examiner
determines that the claims are “directed to evaluating ‘an engagement
effectiveness of an agent with customers’ representing an abstract idea
directed to a fundamental customer relationship management practice.”
(Final Action 3, emphasis omitted.)
Appellants disagree and argue that “[t]he claims are directed toward
‘measuring engagement effectiveness with respect to a service agent by
analyzing a conversation between the agent and a customer in a social media
environment.’” (Appeal Br. 7.) Appellants further argue that “[t]he abstract
idea provided in the final office action is not supported by the Application or
the claims thereof because the abstract idea applies to environments other
than social media, such as call centers.” {Id.)
Under part one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
Thus, although we consider the claim as a whole, the “directed to” inquiry
focuses on the claim’s “character as a whole.”
The Specification provides evidence as to what the invention is
directed. In this case, the Specification discloses that “one aspect of the
disclosed embodiments [is] to provide an improved customer relationship
management effectiveness measurement method and system.” (Spec. | 8.)
Claim 41 recites “simultaneously capturing topical and sentimental distance
in a conversation history between an agent and customers to evaluate
engagement effectiveness,” comprising the steps of “calculating ... a
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Application 13/245,039
Kullback-Leibler divergence of two probabilistic distributions ... by
sequentially summing: a mathematical product. . . and a logarithmic ratio,”
counting a number of positive and negative words above a threshold to
quantify ... a sentiment change using another calculated ratio,” capturing
... the topical and sentimental distance simultaneously by adding: the
Kullback-Leibler divergence . . . with the quantified sentiment change,” and
“evaluating said agent engagement effectiveness by using the simultaneous
capturing of the topical and sentimental distance and a time-sensitive
pyramid kernel function of implicit topical and sentimental
correspondences.”
In Electric Power Group, “[t]he focus of the asserted claims ... is on
collecting information, analyzing it, and displaying certain results of the
collection and analysis.” Elec. Power Grp., 830 F.3d at 1353. “[W]e have
treated collecting information, including when limited to particular content
(which does not change its character as information), as within the realm of
abstract ideas.” Id.; see also FairWarning IP, LLC v. Iatric Sys., Inc., 839
F.3d 1089, 1093-94 (Fed. Cir. 2016).
Additionally, the Federal Circuit has “recognized that merely
presenting the results of abstract processes of collecting and analyzing
information, without more (such as identifying a particular tool for
presentation), is abstract as an ancillary part of such collection and analysis.”
Elec. Power Grp., 830 F.3d at 1354. Thus, a method, like the claimed
method, “that employs mathematical algorithms [e.g., calculating ... a
Kullback-Leibler divergence of two probabilistic distributions and counting
a number of positive and negative words above a threshold] to manipulate
existing information to generate additional information is not patent
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eligible.” See Digitech Image Techs, LLC v. Elecs.for Imaging, Inc., 758
F.3d 1344, 1351 (Fed. Cir. 2014). In view of the above, we are not
persuaded that the Examiner erred in determining that the pending claims are
directed to an abstract idea.
With regard to Appellants’ argument that “[t]he abstract idea provided
in the final office action is not supported by the Application or the claims
thereof because the abstract idea applies to environments other than social
media, such as call centers” (Appeal Br. 7), we note that claim 41 does not
exclude use of the method in call centers. Nor do Appellants identify
language in claim 41 to support the argument that the claim excludes call
centers or is limited to social media environments.
Appellants also argue that, in an unrelated case, Appeal 2013-008168,
the Board determined those claims to be directed to statutory subject matter.
(Reply Br. 3—5.) In that case, the panel “agree[d] with Appellant that
claim 1 is directed to a method (i.e., a process) for ‘providing an empirical
model of a defined space’ by a series of steps.” (PTAB Decision on Appeal
mailed Sept. 22, 2015, U.S. Patent App. 12/765,954, at 5.) The
Specification in that case disclosed that “[t]he method for providing an
empirical model of a defined space includes the step of defining the desired
space.” (Spec., U.S. Patent App. 12/765,954, at 3.) That Specification
further disclosed that “[ejxemplary spaces include formulated products such
as hair care, oral care, skin care or other consumer formulated products.”
{Id.) That is not our case. Our case relates to collecting data (conversation
history) and analyzing the data (“sequentially summing,” “counting,”
“adding,” and “evaluating”). Nor is that decision binding precedent.
Moreover, that panel did not have the benefit of the additional guidance
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from the Federal Circuit in Affinity Labs., Electric Power Group, and
FairWarning. Therefore, we do not find the argument persuasive of error.
Appellants also argue that “[t]he rejections should not be sustained
because they do not pre-empt an abstract idea.” (Appeal Br. 9.) We are not
persuaded of error. Preemption is not a separate test.
To be clear, the proper focus is not preemption per se, for some
measure of preemption is intrinsic in the statutory right granted
with every patent to exclude competitors, for a limited time, from
practicing the claimed invention. See 35 U.S.C. § 154. Rather,
the animating concern is that claims should not be coextensive
with a natural law, natural phenomenon, or abstract idea; a
patent-eligible claim must include one or more substantive
limitations that, in the words of the Supreme Court, add
“significantly more” to the basic principle, with the result that
the claim covers significantly less. See Mayo 132 S. Ct. at 1294
[566 U.S. at 72-73],
CLS Bank Inti v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1281 (Fed. Cir.
2013), affd, 134 S. Ct. 2347 (2014). Moreover, “[w]here a patent’s claims
are deemed only to disclose patent ineligible subject matter under the Mayo
framework, as they are in this case, preemption concerns are fully addressed
and made moot.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379 (Fed. Cir. 2015). In other words, “preemption may signal patent
ineligible subject matter, [but] the absence of complete preemption does not
demonstrate patent eligibility.” Id.
Appellants further argue that “the claims solve a new problem arising
in social media environments.” (Appeal Br. 9.) However, Appellants do not
point to any language in claim 41 that limits the claim to “social media
environments.” Appellants argument is not commensurate with the scope of
the claim and, therefore, not persuasive of error.
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Part two of the Alice framework has been described “as a 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.’” Alice, 134 S. Ct.
at 2355 (citing Mayo, 566 U.S. at 72—73).
The introduction of a computer into the claim does not alter the
analysis at step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words “apply it” is not
enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on ... a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption concern
that undergirds our §101 jurisprudence. Given the ubiquity of
computers, wholly generic computer implementation is not
generally the sort of “additional featur[e]” that provides any
“practical assurance that the process is more than a drafting effort
designed to monopolize the [abstract idea] itself.”
Id. at 2358 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea ... on a
generic computer.” Id. at 2359. They do not. Claim 41 relates to a method
for collecting data (conversation history) and analyzing the data
(“sequentially summing,” “counting,” “adding,” and “evaluating”).
Taking the claim elements separately, the function performed by the
computer at each step is purely conventional. Collecting and analyzing data
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are basic computer functions. Moreover, the Specification discloses that the
invention can be implemented using generic computer components. (See
Spec. H25—26.) In short, each step does no more than require a generic
computer to perform generic computer functions.
Considered as an ordered combination, the computer components of
Appellants’ method add nothing that is not already present when the steps
are considered separately. The claims do not, for example, purport to
improve the functioning of the computer itself. Nor do they effect an
improvement in any other technology or technical field. Instead, the claims
at issue amount to nothing significantly more than an instruction to apply the
abstract idea of collecting and analyzing data using some unspecified,
generic computer. That is not enough to transform an abstract idea into a
patent-eligible invention. Alice, 134 S. Ct. at 2360.
In view of the above, we are not persuaded that that Examiner erred in
rejecting claim 41 under § 101. Claims 42 and 43 are not separately argued
and fall with claim 41. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
The Examiner’s rejection of claims 41—43 under 35 U.S.C. § 101 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)(l)(iv).
AFFIRMED
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