Ex Parte O et al

Patent Trial and Appeal Board

Aug 23, 2018

13832112 (P.T.A.B. Aug. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/832, 112 03/15/2013
136582 7590 08/27/2018
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
FIRST NAMED INVENTOR
Neil O'Connor
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.
413039-US-NP/AVA059PA 3477
EXAMINER
FRUNZI, VICTORIA E.
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
08/27/2018 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 NEIL O'CONNOR, TONY McCORMACK, and
PAUL D'ARCY
Appeal2017-006218
Application 13/832, 112 1
Technology Center 3600
Before HUNG H. BUI, NABEEL U. KHAN, and PHILLIP A. BENNETT,
Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 21-3 7, which are all the claims pending
in the application. Claims App'x. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM. 2
1 According to Appellants, the real party in interest is Avaya Inc. Br. 2.
2 Our Decision refers to Appellants' Appeal Brief ("Br.") filed September
13, 2016; Examiner's Answer ("Ans.") mailed December 15, 2016; Final
Office Action ("Final Act.") mailed April 14, 2016; and original
Specification ("Spec.") filed March 15, 2013.
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STATEMENT OF THE CASE
Appellants' invention relates to "a system and a method for assisting
an enterprise [e.g., online merchants] in growing business opportunities [i.e.,
identifying and engaging a potential target in a promotional activity
corresponding to the enterprise]." Spec. ,r,r 2, 7, Abstract.
Claims 21 and 35 are independent. Representative claim 21 is
reproduced below with disputed limitations in italics:
21. A system in a contact center comprising:
a server;
a communication link that couples the server to an external
communication system, wherein the external communication
system is communicatively coupled to a plurality of end-user
devices;
wherein the server comprises:
a processor;
a computer-readable medium coupled to the
processor; and
an experience database coupled to the processor;
wherein the computer-readable medium comprises a
plurality of web robots coupled as a network and comprising
computer readable instructions, the plurality of web robots each
comprising:
a set of target searching programmed instructions
that causes the processor to search the external
communication system for a target entity of a promotional
sales activity;
a set of strategy determining programmed
instructions that causes the processor to determine a
strategy to engage the target entity into the promotional
sales activity, wherein the strategy is selected by the
processor based on a plurality of strategies and associated
strategy results stored in an experience database shared
among the plurality of web robots;
a set of strategy executing programmed instructions
that causes the processor to execute the strategy to
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communicate with the target entity during the promotional
activity by selecting a persona corresponding to the target
entity; and
a set of strategy sharing programmed instructions
that causes the processor to store results of the strategy
executed by the set of strategy executing programmed
instructions in the experience database.
Br. 25 (Claims App'x).
EXAMINER'S REJECTIONS & REFERENCES
(1) Claims 21-37 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. Final Act. 2-5.
(2) Claims 21, 24, and 27-29 stand rejected under
35 U.S.C. § I03(a) as being obvious over Smith (US 2014/0129344 Al;
published May 8, 2014) and Simmons et al. (US 2012/0323674 Al;
published Dec. 20, 2012; "Simmons"). Final Act. 5-10.
(3) Claim 22 stands rejected under 35 U.S.C. § I03(a) as being
obvious over Smith, Simmons, and Spivack et al. (US 2012/0278164 Al;
published Nov. 1, 2012). Final Act. 11.
(4) Claim 23 stands rejected under 35 U.S.C. § I03(a) as being
obvious over Smith, Simmons, Spivack, and Haszto et al. (US 6,192,338 B 1;
issued Feb. 20, 2001). Final Act. 11-12.
(5) Claims 25, 26, and 33 stand rejected under 35 U.S.C. § I03(a)
as being obvious over Smith, Simmons, and Estes (US 2012/0059776 Al;
published Mar. 8, 2012). Final Act. 12-15.
(6) Claims 30, 32, 35, and 36 stand rejected under
35 U.S.C. § I03(a) as being obvious over Smith, Simmons, and Garcia et al.
(US 2006/0053047 Al; published Mar. 9, 2006). Final Act. 15-19.
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(7) Claim 31 stands rejected under 35 U.S.C. § I03(a) as being
obvious over Smith, Simmons, and Swanson et al. (US 2014/0040786 Al;
published Feb. 6, 2014). Final Act. 19--20.
(8) Claim 34 stands rejected under 35 U.S.C. § I03(a) as being
obvious over Smith, Simmons, and Estill (US 8,244,567 B2; issued Aug. 14,
2012). Final Act. 20-21.
(9) Claim 37 stands rejected under 35 U.S.C. § I03(a) as being
obvious over Smith, Simmons, Garcia, and Spivack. Final Act. 21-22.
DISCUSSION
35 USC§ 101: Claims 21-37
In Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014), the
Supreme Court reiterates an analytical two-step framework previously set
forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566
U.S. 66, 79 (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. 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. If the
claims are directed to eligible subject matter, the inquiry ends. Thales
Visionix Inc. v. United States, 850 F.3d 1343, 1349 (Fed. Cir. 2017); Enfzsh,
LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016).
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
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application." Alice, 134 S. Ct. at 2355 (citing 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. ( citing Mayo, 566 U.S. at 72-73).
In rejecting claims 21-3 7 under 3 5 U.S. C. § 10 1, the Examiner
determines these claims are directed to the abstract idea of "engaging
potential targets of a promotion using target information" which is
considered as (1) "an idea itself' or (2) "a method of organizing human
activities comprising advertising and marketing," and includes limitations
that are analogous to those discussed in Cyberfone and CyberSource. Final
Act. 2--4 (quoting Cyberfone Sys., LLC v. CNN Interactive Grp., Inc., 558 F.
App'x 988 (Fed. Cir. 2014) (holding that using categories to organize, store,
and transmit information is an abstract idea); and CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011) (holding that
obtaining and comparing intangible data is an abstract idea; method steps
that can be performed in the human mind, or by a human using a pen and
paper are also an abstract idea)). The Examiner also determines "[t]he
additional elements [in the claims] do not [i] [i]mprove another technology
or technical field; [ii] [i]mprove the functioning of a computer itself; and
[iii] add a specific limitation other than what is well-understood, routine, and
conventional in the field." Final Act. 4--5.
Alice/Mayo-Step 1 (Abstract Idea)
Turning to the first step of the Alice inquiry, Appellants argue the
claims are not directed to an abstract concept because (1) "no court has
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previously found that claims having the features recited in [representative]
claim 21 were directed to an abstract idea"; (2)
the Examiner improperly evaluates the claim at [a] high level of
abstraction and eliminates all aspects of the specifically recited
features of web robots arranged as a network, web robots
sharing strategy results in an experience database, and web
robots determining strategies based on a plurality of different
strategies and their associated results in the experience
database;
and (3) "claim 21 is directed to a technological solution to [a technology-
based] problem" similar to Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327,
1339 (Fed. Cir. 2016). Br. 11-13. According to Appellants,
[T]he claim recites a method to improve the way a computer
system works a) to manipulate information in a more timely
manner (i.e., improve time needed for robot learning) and b) to
interact with users of a computer system in a more responsive
manner (i.e., present information to a user that is targeted to
them).
Br. 13.
Appellants' arguments are not persuasive. At the outset, we note the
Examiner is required to characterize whether a claim is directed to an
abstract idea under Alice step 1. However, because there is no single
universal definition of an abstract idea, the Examiner is asked "to examine
earlier cases in which a similar or parallel descriptive nature can be seen-
what prior cases were about, and which way they were decided." Amdocs,
841 F.3d at 1288 (Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d
1288, 1294 (Fed. Cir. 2016) (citing Elec. Power Grp., v. Alstom S.A., 830
F.3d 1350, 1353-54 (Fed. Cir. 2016)); accordUSPTO Memorandum, July
2015 Update: Subject Matter Eligibility (July 30, 2015),
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https ://www. uspto. gov/ sites/ default/files/ docmnents/ieg-july-2015-
update. pdf (instructing Examiners that "a claimed concept is not identified
as an abstract idea unless it is similar to at least one concept that the courts
have identified as an abstract idea"). In this case, the Examiner did what
was required under the USPTO Memorandum, and characterized the claims
as required under Alice.
Second, Appellants' reliance on Enfzsh is misplaced. In Enfzsh, the
claims were directed to an improved database architecture, i.e., a self-
referential table - "a specific type of data structure designed to improve the
way a computer stores and retrieves data in memory." Enfzsh, 822 F.3d at
1339. Such a data structure has several distinct advantages over
conventional relational databases, including: (1) faster searching of data
than would be possible with the conventional relational model (see
US 6,151,604 "Enfish '604 patent," 1:55-59, 2:66-3:6); (2) more effective
storage of data other than structured text, such as storage of images and
unstructured text (Enfzsh '604 patent, 2: 16-22, 2:46-52); and (3) more
flexibility in configuring the database (Enfish '604 patent, 2:27-29).
In Enfzsh, the Federal Circuit characterized the "directed to" inquiry
as a stage-one filter to the claims, "considered in light of the specification,
based on whether 'their character as a whole is directed to excluded subject
matter."' Enfzsh, 822 F.3d at 1335. In particular, the Federal Circuit
interpreted the "directed to" inquiry as asking "whether the claims are
directed to an improvement to computer functionality versus being directed
to an abstract idea." Enfzsh, 822 F.3d at 1335 ( emphasis added). "[T]he
focus of the claims is on the specific asserted improvement in computer
capabilities (i.e., the self-referential table for a computer database)." Id.
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Based on the "plain focus of the claims," the Federal Circuit reached the
conclusion that Enfish 's claims were directed to "a specific improvement to
the way computers operate, embodied in the self-referential table," and, as
such, were more than a mere abstract idea. Id. at 1336. Because the Federal
Circuit found step 1 of the Alice two-step analysis was satisfied, Alice step 2
was not required. Id.
In contrast to Enfish, Appellants' claims 21 and 35 are directed to an
abstract idea of "presenting a targeted promotion to a user based on collected
user data," i.e., information, as recognized by the Examiner, that is akin or
analogous to those discussed in Cyberfone and CyberSource. Final Act. 2-
4. Moreover, identifying and engaging a potential target in a promotional
activity corresponding to a business enterprise is also a fundamental
business practice, like: (1) risk hedging in Bilski; (2) intermediated
settlement in Alice, 134 S. Ct. at 2356-57; (3) verifying credit card
transactions in CyberSource, 654 F.3d at 1370; (4) guaranteeing transactions
in buySAFE, Inc., 765 F.3d at 1354; (5) distributing products over the
Internet in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014);
( 6) determining a price of a product offered to a purchasing organization in
Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306 (Fed. Cir. 2015);
and (7) pricing a product for sale in OIP Techs., Inc. v. Amazon.com, Inc.,
788 F.3d 1359 (Fed. Cir. 2015). Steps of identifying and engaging a
potential target in a promotional activity corresponding to a business
enterprise are also a building block of a market economy. Thus, identifying
and engaging a potential target in a promotional activity corresponding to a
business enterprise, like risk hedging, intermediated settlement, and
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verifying credit card transactions, is an "abstract idea" beyond the scope of
35 U.S.C. § 101. See Alice, 134 S. Ct. at 2356.
Separately, we note Appellants' claims 21 and 3 5 do not improve the
performance of a computer or solve a problem specific to computers or
computer networks. Appellants' Specification and arguments do not
demonstrate the claims "improve the way a computer stores and retrieves
data in memory," as the claims in Enfzsh did via a "self-referential table for a
computer database." See Enfzsh, 822 F.3d at 1336, 1339. Instead, as
recognized by the Examiner,
the claims are [not] directed to a technological solution to a
problem. The improvement recited by the Applicant is not
improving the computer but implementing the business strategy
of a reward system to reward bots for working more efficiently.
The web bot, the computer, and the database are not being
improved.
Ans. 4.
In fact, neither the steps recited in Appellants' claims 21 and 3 5 nor
the rest of Appellants' Specification supply any description or explanation as
to how these data processing steps are intended to provide: (1) a
"solution ... necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks,"
as explained by the Federal Circuit in DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014); (2) "a specific improvement to
the way computers operate," as explained in Enfzsh, 822 F.3d at 1336; or
(3) an "unconventional technological solution ... to a technological
problem" that "improve[ s] the performance of the system itself," as
explained in Amdocs, 841 F.3d at 1300, 1302.
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Accordingly, we agree with the Examiner that claims 21 and 3 5 are
directed to the abstract idea of "presenting a targeted promotion to a user
based on collected user data." Final Act. 5.
Alice/Mayo-Step 2 (Inventive Concept)
In the second step of the Alice inquiry, Appellants do not argue
whether the claims contain an "inventive concept." Instead, Appellants
argue "the limitations of claim 21, when considered in combination, recite
more than merely the abstract concept of ''presenting a targeted promotion
to a user based on collected user data." Br. 14. According to Appellants,
Br 14.
the combination of elements imposes meaningful limits
such that a specific application of a process is recited that
improves the content of information that is presented to a
computer user and improves the timeliness of providing that
information to the user a plurality of cooperating web robots that
share information with one another through an experience
database.
Improving the manner in which users and computers
interact and improving the manner in which information is timely
processed have been identified specifically as examples of when
a claim, considered as a whole, amounts to significantly more
than the judicial exception and, accordingly, is drawn to patent
eligible subject matter.
Appellants' arguments are not persuasive. As recognized by the
Examiner, "the instant cases is merely describing a reward system for the
bots" and "is merely pointing to a reward system for encouraging the bots to
expedite its learning and function, but does not 'improve a computer or
technology."' Ans. 5.
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Under current Federal Circuit precedent, an "inventive concept" under
Alice step 2 can be established by showing, for example, that the patent
claims:
(1) provide a technical solution to a technical problem
unique to the Internet, e.g., a "solution ... necessarily rooted in
computer technology in order to overcome a problem specifically
arising in the realm of computer networks" (see DDR, 773 F.3d
at 1257);
(2) transform the abstract idea into "a particular,
practical application of that abstract idea," e.g., "installation of a
filtering tool at a specific location, remote from the end-users,
with customizable filtering features specific to each end user"
(see Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC,
827 F.3d 1341, 1352, 1350 (Fed. Cir. 2016)); or
(3) "entail[] an unconventional solution ([e.g.,]
enhancing data in a distributed fashion) to a technological
problem ([ e.g.,] massive record flows [that] previously required
massive databases)" and "improve the performance of the system
itself' (see Amdocs, 841 F.3d at 1300, 1302).
In this case, however, we find no element or combination of elements
recited in Appellants' claims 21 and 35 that contains any "inventive
concept" or adds anything "significantly more" to transform the abstract
concept (i.e., "engaging potential targets of a promotion using target
information") into a patent-eligible application. Alice, 134 S. Ct. at 2357.
Instead, we agree with the Examiner that added computer elements such as a
service provider computer, processor, and memory cannot transform the
abstract idea into a patent eligible invention. As our reviewing court has
observed, "after Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible." DDR, 773 F.3d at 1256 (citing Alice, 134 S. Ct. at 2358)).
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Additional Argument
Appellants argue that the claims "do not seek to tie up any judicial
exception such that others cannot practice that exception" or "preempt the
identified abstract idea." Br. 10. However, this argument is not persuasive
because, although "preemption may signal patent ineligible subject matter,
the absence of complete preemption does not demonstrate patent eligibility."
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015). "Where a patent's claims are deemed only to disclose patent
ineligible subject matter" under the Alice/Mayo framework, "preemption
concerns are fully addressed and made moot." Id.
Because Appellants' claims 21 and 3 5 are directed to a patent-
ineligible abstract concept and does not recite something "significantly
more" under the second prong of the Alice analysis, we sustain the
Examiner's rejection of claims 21-37 under 35 U.S.C. § 101.
35 US.C. § 103(a): Claims 21-37
In support of the obviousness rejection, the Examiner finds Smith
teaches most aspects of Appellants' claim 21 and similarly, claim 35,
including
a set of target searching programmed instructions that
causes the processor to search the external communication
system for a target entity of a promotional sales activity;
a set of strategy determining programmed instructions that
causes the processor to determine a strategy to engage the target
entity into the promotional sales activity, wherein the strategy is
selected by the processor based on a plurality of strategies and
associated strategy results stored in an experience database
shared among the plurality of web robots;
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a set of strategy executing programmed instructions that
causes the processor to execute the strategy to communicate with
the target entity during the promotional activity by selecting a
persona corresponding to the target entity; and
a set of strategy sharing programmed instructions that
causes the processor to store results of the strategy executed by
the set of strategy executing programmed instructions in the
experience database.
Final Act. 5-8 (citing Smith ,r,r 21, 22, 35, 37, 38, 43, Fig. 1).
The Examiner acknowledges Smith does not teach, but relies on
Simmons for teaching the use of "a plurality of web robots coupled as a
network" and each web robot comprises instructions to perform functions
recited in Smith in order to support the conclusion of obviousness. Final
Act. 8-9 (citing Simmons ,r,r 7, 15, 148,237, 256-257).
Appellants argue neither Simmons nor Smith, whether considered
individually or in combination, teaches or suggests "a plurality of web
robots, having all of the attributes recited in claim 21, arranged as a
network." Br. 20. Appellants also argue
the combination of Simmons and Smith does not teach or suggest
a plurality of web robots that each determine the strategy to
engage the target entity based on the strategies and associated
results that are stored in the experience database shared among
all of the web robots.
Br. 20-21. Appellants further argue
even if modifying Simmons in view of Smith might result in a
neural network being used as a machine learning algorithm
somewhere in the advertising service 122, such a modification
would not result in a plurality of web robots each having the
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characteristics recited in claim 21 and, thus, the system of claim
21, when considered as a whole, would not be realized.
Br. 21.
In response, the Examiner has shifted her position from Simmons to
Smith and now relies on (1) Figures 5A and 5C of Smith to show "a
plurality of web robots communicating with each other" and (2) paragraph
62 of Smith to describe "a scenario of the branded avatar responding to
questions or interacting with additional avatars." Ans. 6-7 (citing Smith ,r
62, Figs. 5A, 5C).
We do not agree with the Examiner's position. Instead, we agree with
Appellants that neither Simmons nor Smith, whether considered individually
or in combination, teaches or suggests "a plurality of web robots, having all
of the attributes recited in claim 21, arranged as a network." Br. 20. For
example, Smith's Figure 5C is reproduced below:
!
L__ __ """"""'"""""""-"''-'"'""'"""""'""""""""___ j
Smith's Figure 5C shows an advertisement provided to a user that employs
the advertising avatar, and user's interaction with the advertisement by
clocking on the advertising avatar or via voice and/or gesture control.
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Paragraph 62 of Smith describes user's interaction with advertising
avatars, for example, "where a pizza delivery person avatar 912 representing
the same advertiser enters the display and encourages the user to get a pizza
delivered." Smith ,r 62.
Neither Figure 5C nor paragraph 62 of Smith teaches or suggests
Appellants' claimed "plurality of web robots coupled as a network" and each
web robot comprises instructions to perform functions recited in Appellants'
claim 21, including, for example, ( 1) "to search the external communication
system for a target entity of a promotional sales activity"; (2) "to determine a
strategy to engage the target entity into the promotional sales activity,
wherein the strategy is selected by the processor based on a plurality of
strategies and associated strategy results stored in an experience database
shared among the plurality of web robots"; (3) "to execute the strategy to
communicate with the target entity during the promotional activity by
selecting a persona corresponding to the target entity"; and (4) "to store
results of the strategy executed by the set of strategy executing programmed
instructions in the experience database."
For these reasons, we are persuaded of Examiner error. Accordingly,
we do not sustain the Examiner's obviousness rejection of (1) claims 21, 24,
and 27-29 as being obvious over Smith and Simmons; (2) claim 22 as being
obvious over Smith, Simmons, and Spivack; (3) claim 23 as being obvious
over Smith, Simmons, Spivack, and Haszto; (4) claims 25, 26, and 33 as
being obvious over Smith, Simmons, and Estes; (5) claims 30, 32, 35, and
3 6 as being obvious over Smith, Simmons, and Garcia; ( 6) claim 31 as being
obvious over Smith, Simmons, and Swanson; (7) claim 34 as being obvious
over Smith, Simmons, and Estill; and (8) claim 37 as being obvious over
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Smith, Simmons, Garcia, and Spivack, which Appellants do not argue
separately.
CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 21-3 7 under
35 U.S.C. § 101. However, we conclude Appellants have demonstrated the
Examiner erred in rejecting claims 21-3 7 under 3 5 U.S. C. § 10 3.
DECISION
As such, we AFFIRM the Examiner's final rejection of claims 21-37
under 35 U.S.C. § 101. However, we REVERSE the Examiner's final
rejection of claims 21-37 under 35 U.S.C. § 103(a).
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner's decision rejecting
claims 21-37. See 37 C.F.R. § 4I.50(a)(l).
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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