Ex Parte Trauth et al

Board of Patent Appeals and Interferences

Jun 26, 2008

09998941 (B.P.A.I. Jun. 26, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
____________________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
____________________ 6
7
Ex parte GREGORY L. TRAUTH, CLINTON D. BROWN 8
and DANIEL S. ARGO 9
____________________ 10
11
Appeal 2008-1168 12
Application 09/998,941 13
Technology Center 3600 14
____________________ 15
16
Decided: June 26, 2008 17
____________________ 18
19
Before WILLIAM F. PATE, III, MURRIEL E. CRAWFORD and BIBHU 20
R. MOHANTY, Administrative Patent Judges. 21
22
PATE, III, Administrative Patent Judge. 23
24
DECISION ON APPEAL 25
26
STATEMENT OF CASE 27
The Appellants appeal under 35 U.S.C. § 134 (2002) from a Final 28
Rejection of claims 1-33. We have jurisdiction under 35 U.S.C. § 6(b) 29
(2002). 30
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The Appellants claim electronic network implemented methods for 1
notifying employees of a company (such as service representatives) that 2
customer feedback messages (such as complaints and complements) have 3
been received so that the messages can be addressed. 4
Representative independent claims 1 and 22 read as follows: 5
1. An electronic network implemented method for notifying 6
personnel of customer feedback messages, comprising: 7
receiving from a customer a customer feedback message 8
in an electronic format; automatically storing said feedback 9
message from said customer in a database in response to 10
receipt of said customer feedback message in said electronic 11
format; 12
and 13
automatically creating and transmitting an electronic 14
notification message to a first employee of an employer, said 15
electronic notification message providing an indication that a 16
feedback message exists, said automatically creating and 17
transmitting occurring in response to at least one of said 18
receiving and said automatically storing. 19
20
22. An electronic network implemented method for receiving 21
and tracking customer feedback messages, comprising: 22
receiving a customer feedback message of a customer; 23
storing said customer feedback message in a database; 24
creating an electronic notification message indicating that 25
a customer feedback message has been received from an 26
individual customer; 27
promptly transmitting said notification message to an 28
employee of an employer upon receipt of said customer 29
feedback message; 30
accessing said database using a web server to retrieve 31
said customer feedback message to a web browser; and 32
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displaying to said employee said customer feedback 1
message within a web page displayed by said web browser. 2
3
The prior art relied upon by the Examiner in rejecting the claims is: 4
Bayer US 2002/0103693 A1 Aug. 1, 2002 5
The Examiner rejected claims 1-4, 7, 17, 18 and 33 under 35 U.S.C. 6
§ 102(e) as lacking novelty over Bayer. 7
The Examiner rejected claims 5, 6, 8-16 and 19-32 under 35 U.S.C. 8
§ 103(a) as unpatentable over Bayer. 9
We AFFIRM. 10
11
ISSUES 12
The following issues have been raised in the present appeal. 13
1. Whether the Appellants have shown that the Examiner erred in 14
rejecting claims 1-4, 7, 17, 18 and 33 as lacking novelty over Bayer. 15
2. Whether the Appellants have shown that the Examiner erred in 16
rejecting claims 5, 6, 8-16 and 19-32 as unpatentable over Bayer. 17
18
FINDINGS OF FACT 19
The record supports the following findings of fact (FF) by a 20
preponderance of the evidence. 21
1. Bayer discloses an electronic network 110, 112, 114 22
implemented method for notifying personnel including receiving an 23
electronic customer feedback message 710 from a customer, automatically 24
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storing the feedback message in a database 600, and transmitting an 1
electronic notification message 810 to a first employee of an employer to 2
provide an indication that a feedback message exists in response to receiving 3
and/or automatically storing the feedback message (Figs. 1, 2, 6-9E; ¶¶ 4
[0030], [0032], [0057], [0061], [0068], [0069], [0071], [0073], [0078]). 5
Bayer also discloses accessing the database using a web server to retrieve 6
the customer feedback message to a web browser by other customers 7
([0079]). 8
2. Bayer inherently discloses automatically creating the electronic 9
notification message because the message for forwarding the feedback 10
message must be created before it is transmitted. 11
3. Bayer does not specifically disclose attaching an audio file to 12
the notification message. 13
4. Bayer does not specifically disclose displaying for the 14
employee, the customer feedback message within a web page displayed by 15
the web browser. 16
17
PRINCIPLES OF LAW 18
“A claim is anticipated only if each and every element as set forth in 19
the claim is found, either expressly or inherently described, in a single prior 20
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 21
628, 631 (Fed. Cir. 1987). In addition, “[i]t is well settled that a prior art 22
reference may anticipate when the claim limitations not expressly found in 23
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that reference are nonetheless inherent in it.” In re Cruciferous Sprout 1
Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002). 2
“Section 103 forbids issuance of a patent when ‘the differences 3
between the subject matter sought to be patented and the prior art are such 4
that the subject matter as a whole would have been obvious at the time the 5
invention was made to a person having ordinary skill in the art to which said 6
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 7
1734 (2007). The question of obviousness is resolved on the basis of 8
underlying factual determinations including (1) the scope and content of the 9
prior art, (2) any differences between the claimed subject matter and the 10
prior art, (3) the level of skill in the art, and (4) where in evidence, so-called 11
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 12
(1966). In KSR, the Supreme Court reaffirmed principles based on its 13
precedent that “[t]he combination of familiar elements according to known 14
methods is likely to be obvious when it does no more than yield predictable 15
results.” KSR, 127 S.Ct. at 1739. The Court also explained that “[w]hen a 16
work is available in one field of endeavor, design incentives and other 17
market forces can prompt variations of it, either in the same field or a 18
different one. If a person of ordinary skill can implement a predictable 19
variation, § 103 likely bars its patentability. For the same reason, if a 20
technique has been used to improve one device, and a person of ordinary 21
skill in the art would recognize that it would improve similar devices in the 22
same way, using the technique is obvious unless its actual application is 23
beyond his or her skill.” Id. at 1740. 24
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The Court further noted that “[t]o facilitate review, this analysis 1
should be made explicit.” Id. at 1741, citing In re Kahn, 441 F.3d 977, 988 2
(Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained 3
by mere conclusory statements; instead, there must be some articulated 4
reasoning with some rational underpinning to support the legal conclusion of 5
obviousness”). However, “the analysis need not seek out precise teachings 6
directed to the specific subject matter of the challenged claim, for a court 7
can take account of the inferences and creative steps that a person of 8
ordinary skill in the art would employ.” Id. at 1741. 9
10
ANALYSIS 11
Claims 1-4, 7, 17, 18 and 33 12
The Examiner rejected these claims as lacking novelty over Bayer 13
contending that Bayer discloses each and every recited limitation (Ans. 3-5). 14
The Appellants separately argue various claims under this rejection, and 15
thus, we address these separately argued claims in detail infra. 16
Claim 1 17
The Appellants contend that Bayer does not disclose automatically 18
creating and transmitting a message to an employee in response to either 19
receiving or storing customer feedback as recited in claim 1 (App. Br. 8). In 20
this regard, the Appellants argue that the recited term “automatic” refers to 21
the immediacy of the electronic notification message and rely on portions of 22
the Specification that state the objective of the invention is to provide 23
“nearly immediate” or “real-time” notification of customer complaints to 24
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support this argument (App. Br. 8 and 9; Reply Br. 4). However, the 1
Appellants’ argument fails from the outset because it is not based on 2
limitations appearing in the claims. In re Self, 671 F.2d 1344, 1348 (CCPA 3
1982). We note that absent claim language carrying a narrow meaning, the 4
Examiner should only limit the claim based on the specification or 5
prosecution history when those sources expressly disclaim the broader 6
definition. In re Bigio, 381 F.3d 1320, 1325 (Fed Cir. 2004). Such a 7
disclaimer is absent in the present case. The term “automatic” does not 8
connote a time restriction or limit. 9
The Appellants also argue that automatic notification is precluded in 10
Bayer because the disclosed system performs intervening reviews of 11
feedback information (App. Br. 10). This argument is not persuasive and we 12
agree with the Examiner that the limitation “automatically” does not 13
preclude a multi-step process, and is satisfied by use of automation machines 14
(i.e., electronics) to perform a task (i.e., transmit the message notification) 15
(Ans. 13 and 14). As the Examiner also noted, even the Appellants’ own 16
disclosed embodiment implements the intervening step of determining who 17
to send the message to based on whether a customer satisfaction exceeds a 18
threshold value (Specification: Fig. 3, Step 304, Pg. 8, l. 17-Pg. 9, l. 14; Ans. 19
13). Therefore, in view of the above, the Appellants have not shown that the 20
Examiner erred in rejecting claim 1 as lacking novelty over Bayer. 21
Claim 3 22
The Appellants also separately argue with respect to dependent claim 23
3 that Bayer does not disclose the recited “receiving a customer satisfaction 24
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rating” limitation because Bayer discloses receiving customer feedback and 1
determining the severity or nature of the customer's comment or complaint 2
(App. Br. 11). This argument is without merit because the customer 3
feedback disclosed in Bayer clearly includes customer satisfaction rating in 4
which the customer rates the travel services received (Ans. 14 and 15). For 5
example, Figures 9A-9E of Bayer illustrate various embodiments of 6
customer feedback forms in which the customer rates various aspects of 7
travel services based on his/her level of satisfaction (Figs. 9A-9E). 8
Therefore, the Appellants have not shown that the Examiner erred in 9
rejecting claim 3. 10
Claims 17 11
The Appellants again rely on arguments submitted relative to claim 1 12
in asserting the patentability of claims 17 (App. Br. 12). However, we find 13
the Appellants’ arguments unconvincing for the reasons discussed supra 14
relative to claim 1. 15
The Appellants further argue that claim 17 specifically recites 16
“promptly transmitting” the electronic notification message to an employee 17
upon receipt of a customer feedback message, the implicit argument being 18
that the system of Bayer does not promptly transmit the electronic 19
notification message (App. Br. 12). However, as noted by the Examiner, the 20
term “promptly” is “relative in nature and generally means that something is 21
done quickly or expeditiously,” and we agree that this limitation is satisfied 22
by the system of Bayer which utilizes an electronic system to address 23
customer complaints more promptly than prior art customer feedback 24
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systems (Ans. 13). Thus, the Appellants have not shown that the Examiner 1
erred in rejecting claim 17 as lacking novelty over Bayer. 2
Claim 33 3
The Appellants rely on arguments submitted relative to claim 1 in 4
arguing the patentability of claim 33 (App. Br. 13). Thus, for the same 5
reasons discussed supra relative to claim 1, we find that the Appellants have 6
not shown that the Examiner erred in rejecting claim 33 as lacking novelty 7
over Bayer. 8
9
The remaining dependent claims 2, 4, 7 and 18 that stand rejected as 10
lacking novelty over Bayer are not argued separately by the Appellants. 11
Thus, the Appellants have also failed to show that the Examiner erred in 12
rejecting these dependent claims. See 37 C.F.R. § 41.37(c)(1)(vii). 13
14
Claims 5, 6, 8-16 and 19-32 15
The Examiner rejected these claims as unpatentable over Bayer. The 16
Appellants separately argue various claims under this rejection, and thus, we 17
address these separately argued claims in detail infra. 18
Claims 5 and 6 19
The Appellants contend that because Bayer does not disclose 20
“receiving a customer satisfaction rating” as recited in claim 3 from which 21
claims 5 and 6 ultimately depend, Bayer cannot teach or suggest the 22
remaining recited steps of claims 5 and 6 that utilize the received customer 23
satisfaction rating (App. Br. 13). However, as discussed supra relative to 24
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claim 3, we find the Appellants’ argument to be without merit. Moreover, 1
Bayer discloses determining whether the received customer feedback should 2
be forwarded to the service provider based on the severity of the feedback, 3
thereby disclosing the recited threshold determination recited in these claims 4
(Fig. 8, Step 806; [0071]). Thus, the Appellants have failed to show that the 5
Examiner erred in rejecting dependent claims 5 and 6. 6
Claims 12-14 7
The Appellants again rely on the unconvincing arguments that Bayer 8
does not teach or suggest “receiving a customer satisfaction rating” or the 9
recited threshold determination, but do not present any other arguments with 10
respect to these claims (App. Br. 14). Thus, for the same reasons addressed 11
supra, the Appellants have failed to show that the Examiner erred in 12
rejecting claims 12-14 as unpatentable. 13
Claim 15 14
The Appellants again argue that Bayer does not teach or suggest 15
“satisfaction rating” as similarly argued with respect to claim 3 (App. Br. 15 16
and 16). The Appellants further argue that because Bayer teaches generation 17
of ratings of travel service providers based on periodic queries of stored 18
data, it does not teach automatically generating an electronic notification 19
message as argued with respect to claim 1 (App. Br. 15 and 16). However, 20
for the same reason discussed supra relative to claims 1 and 3, we find the 21
Appellants’ arguments unconvincing. The fact that Bayer discloses 22
generation of additional ratings of travel service providers which is not 23
generated by the Appellants’ invention does not detract from the fact that the 24
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customers provide ratings of the travel service providers in the system of 1
Bayer. 2
The Appellants also argue that Bayer does not suggest “attaching said 3
audio file to said notification message” as specifically recited in claim 15 4
(App. Br. 15; FF 3). The Examiner refers to the prior art rejections of claims 5
1-14 and 32 as well as ¶ 78 of Bayer to contend that the recited feature 6
would have been obvious to one of ordinary skill in the art (Ans. 11 and 16). 7
In this regard, the Examiner states that Bayer discloses creating an audio file 8
of the spoken customer feedback message and transmitting the electronic 9
notification message wherein feedback is forwarded to an appropriate 10
service provider’s representative via an electronic mail message (Ans. 8 and 11
9). While Bayer does not appear to explicitly state that the audio file is 12
attached, the Examiner takes Official Notice that transmitting and accessing 13
audio messages through an audio file is well known in the art (Ans. 10). 14
Moreover, the Examiner reasoned that it would have been obvious to one of 15
ordinary skill in the art to modify Bayer to provide the customer feedback 16
message to the service provider’s representative in the original audio format 17
to facilitate analysis of a customer's emotional state based on voice 18
intonations, etc. (Ans. 10). We find this articulated reason set forth by the 19
Examiner to be rational and sufficient to support the legal conclusion that 20
attaching an audio file to the transmitted electronic notification would have 21
been obvious to one of ordinary skill in the art. See KSR, 127 S.Ct. at 1741. 22
The Appellants further argue that Bayer fails to disclose “transmitting 23
a second electronic notification message to a second employee of said 24
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employer if said satisfaction rating is below said threshold” as also recited in 1
claim 15 (App. Br. 16 and 17). The Examiner notes that Bayer discloses 2
forwarding of aggregated feedback reports to a travel manager as well as a 3
service provider representative based on a threshold determination, but 4
acknowledges that Bayer fails to disclose that transmission of the second 5
notification message is to a second employee of the same employer (Ans. 7). 6
However, the Examiner states that it is well known in the art for a manager 7
of a company to receive aggregated feedback reports for review and for 8
customer service representatives to receive messages in order to address 9
customer complaints (Ans. 8). Thus, the Examiner concludes that it 10
would have been obvious to one of ordinary skill in the art to provide the 11
aggregated feedback reports disclosed in Bayer to the managers (i.e., second 12
employee) in addition to providing the electronic notification message 13
to the service representatives (i.e., first employee) in order to allow these 14
employees to focus on their respective roles within the company (Ans. 7 and 15
8). We find the Examiner’s articulated reason to be rational and agree with 16
the Examiner that transmitting a second electronic notification message to a 17
second employee of the employer based on a threshold determination would 18
also have been obvious to one of ordinary skill in the art. See KSR, 127 19
S.Ct. at 1741. 20
Therefore, in view of the above, we agree with the Examiner that 21
claim 15 would have been obvious to one of ordinary skill in the art in view 22
of Bayer and find that the Appellants have failed to show that the Examiner 23
erred in rejecting claim 15. 24
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Claim 20 1
The Appellants rely on the same argument based on the limitation 2
“promptly transmitting said notification message” set forth relative to claim 3
17 in arguing the patentability of claim 20 (App. Br. 17). Thus, because 4
Appellants’ argument for patentability of claim 17 is not persuasive as 5
discussed supra, we likewise find that the Appellants have not shown that 6
the Examiner erred in rejecting claim 20 as unpatentable over Bayer. 7
Claim 22 8
The Appellants initially rely on the same argument based on the 9
limitation “promptly transmitting said notification message” set forth 10
relative to claim 17 which we found unconvincing as discussed supra (App. 11
Br. 17). The Appellants further argue that Bayer merely discloses posting 12
feedback from travelers on a website for viewing by other travelers, and 13
thus, contends Bayer does not suggest “displaying to said employee said 14
customer feedback message within a web page displayed by said web 15
browser,” as recited in claim 22 (App. Br. 17 and 18; FF 4). 16
The Examiner concedes that Bayer does not specifically disclose this 17
limitation (Ans. 11, 13). However, the Examiner takes Office Notice that 18
making audio files available on the Internet using a link to a web page is 19
well known in the art and reasons that it would have been obvious to one of 20
ordinary skill in the art to allow the employees to use a web server to 21
retrieve the audio file of the customer feedback message by selection of a 22
link in order to facilitate global access to audio feedback, such global access 23
being a well recognized advantage of providing data through the Internet 24
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(Ans. 12). We agree, and find that the Examiner’s articulated reason to be 1
rational and sufficient to support the legal conclusion of obviousness. See 2
KSR, 127 S.Ct. at 1741. 3
The Appellants’ argument that Examiner is engaging in impermissible 4
hindsight and that there is no suggestion in Bayer motivating the 5
modification suggested is noted (App. Br. 20). However, explicit teaching is 6
not required to properly establish a prima facie case of obviousness. Id. at 7
1741. Providing remote access to stored data via a web server is a well 8
known technique and it would have been obvious to one of ordinary skill in 9
the art that providing remote access would improve customer feedback 10
systems in the same manner already well appreciated in the art. Id. at 1740. 11
The Appellants further argue that Bayer does not teach a notification 12
message and a transmission of a message (App. Br. 20). We disagree and 13
find that Bayer inherently discloses both messages because a forwarding 14
message with the appropriate addressee (e.g., to the employee of the travel 15
service provider) would have to be created before forwarding the customer 16
feedback message (FF 2). Thus, the Appellants’ arguments fail to convince, 17
and the Appellants have not shown that the Examiner erred in rejecting 18
claim 22 as unpatentable over Bayer. 19
Claim 27 20
The Appellants again argue that Bayer does not suggest “providing a 21
link to a web page enabling said employee to playback said audio file” (App. 22
Br. 21). However, as discussed supra with respect to claim 22, we concur 23
with the Examiner that the recited invention would have been obvious to one 24
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of ordinary skill in the art. While the Appellants have objected to the 1
Examiner’s Official Notice and disputes the Examiner’s assertion, the 2
Examiner is correct in pointing out that the Appellant has not specifically 3
identified the supposed errors of the Examiner’s Official Notice (App. Br. 4
22; Ans. 19). In addition, the Examiner has cited numerous documents in 5
support of the Official Notice (Ans. 19). With respect to the Appellants’ 6
assertion that the Examiner’s conclusion does not address the technical 7
feasibility of making audio files available on the Internet using a link to a 8
webpage, we concur with the Examiner that such limitations do not appear 9
in the claims and that web implementation would have been within the skill 10
of one of ordinary skill in the art, such technical feasibility being well 11
known (App. Br. 22; Ans. 19 and 20). Thus, the Appellants have not shown 12
that the Examiner erred in rejecting claim 27 as unpatentable over Bayer. 13
Claim 28 14
The Appellants contend that Bayer does not suggest “automatically 15
serv[ing] said electronic notification message to an employee of an employer 16
promptly upon receipt of said customer complaint” or the recited web server 17
that enables the employee to retrieve the complaint record (App. Br. 23). 18
We disagree for the reasons set forth supra relative to claims 17, 22 and 27. 19
No other arguments have been presented by the Appellants as to the 20
patentability of independent claim 28. Therefore, the Appellants have failed 21
to show that the Examiner erred in rejecting independent claim 28 as 22
unpatentable over Bayer. 23
24
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The remaining claims 8-11, 16, 19, 21, 23-26 and 29-32 that stand 1
rejected as unpatentable over Bayer are not argued separately by the 2
Appellants. Thus, the Appellants have also failed to show that the 3
Examiner erred in rejecting these claims as well. See 37 C.F.R. 4
§ 41.37(c)(1)(vii). 5
6
CONCLUSIONS 7
1. The Appellants have not shown that the Examiner erred in 8
rejecting claims 1-4, 7, 17, 18 and 33 as lacking novelty over Bayer. 9
2. The Appellants have not shown that the Examiner erred in 10
rejecting claims 5, 6, 8-16 and 19-32 as unpatentable over Bayer. 11
12
ORDER 13
The Examiner’s rejections of claims 1-33 are AFFIRMED. 14
No time period for taking any subsequent action in connection with 15
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 16
§ 1.136(a)(1)(iv) (2007). 17
18
AFFIRMED 19
20
21
22
23
JRG 24
25
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