Ex Parte Tuchman et al

Patent Trial and Appeal Board

Mar 21, 2017

13213002 (P.T.A.B. Mar. 21, 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.
9092P011 7375
EXAMINER
YOUNG, ASHLEY YA-SHEH
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
13/213,002 08/18/2011 Kenneth D. Tuchman
8791 7590 03/21/2017
BLAKELY SOKOLOFF TAYLOR & ZAFMAN
1279 Oakmead Parkway
Sunnyvale, CA 94085-4040
03/21/2017 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 KENNETH D. TUCHMAN,
BRUCE A. SHARPE, and
HENRY D. TRUONG
Appeal 2014-009779
Application 13/213,002
Technology Center 3600
Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Kenneth D. Tuchman, Bruce A. Sharpe, and Henry D. Truong
(Appellants) seek review under 35U.S.C. § 134 of a final rejection of claims
1—25, the only claims pending in the application on appeal. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed June 11, 2014) and Reply Brief (“Reply Br.,” filed September 11,
2014), and the Examiner’s Answer (“Ans.,” mailed July 16, 2014), and Final
Action (“Final Act.,” mailed February 26, 2014).
Appeal 2014-009779
Application 13/213,002
The Appellants invented a way of proactively predicting a subject
matter of support services and a skill set. Specification para. 1.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A computer-implemented method for providing support
services to users of products, the method comprising:
[1] tracking,
by a guided support identification system executed
within a server representing a service center,
user interaction of a user with a presentation of a self-
support knowledgebase (KB) without involving a live
support agent of the support center,
while the user is navigating the presentation at a remote
device during a user session of navigating the
presentation,
including periodically receiving signals from the remote
device indicating the user interaction with the
presentation at the point in time,
the presentation describing a possible solution to a
problem related to a product supported by the service
center,
wherein the service center provides support services for a
plurality of products on behalf of a plurality of product
providers;
[2] predicting,
by the guided support identification system,
a subject matter of the product that the user is currently
interested in based on the user interaction,
wherein the subject matter is concurrently predicted
while the user is navigating the presentation within the
same user session of navigating the presentation;
2
Appeal 2014-009779
Application 13/213,002
[3] identifying,
by the guided support identification system,
one or more skill sets that are required to provide support
services for the subject matter of the product,
wherein the one or more skill sets are concurrently
identified while the user is navigating the presentation,
wherein tracking user interaction, predicting a subject
matter, and identifying one or more skill sets comprise
receiving a first signal from the remote device indicating
that the user is accessing a first portion of the
presentation,
in response to the first signal,
dynamically determining a first subject matter of
the first portion of the presentation,
determining a first skill set that is required to
handle the first subject matter,
receiving a second signal from the remote device
indicating that the user is accessing a second
portion of the presentation,
in response to the second signal, dynamically
determining a second subject matter of the second
portion of the presentation,
determining a second skill set that is required to
handle the second subject matter,
wherein the first subject matter is a general subject matter
and the second subject matter is a specific subject matter,
wherein
the first and second signals are received from the
remote device
and
the first and second subject matters and skill sets
are determined within the same user session of
navigating the presentation;
3
Appeal 2014-009779
Application 13/213,002
and
[4] in response to a request received from the remote device
requesting a live support after navigating the presentation,
establishing,
by a multi-channel communications and routing
system running within the server,
a communications session between the user and an agent
who qualifies the one or more skill sets
to enable the agent to provide live support services
to the user.
The Examiner relies upon the following prior art:
Claims 19-22 stand rejected under 35U.S.C. § 112, second
paragraph, as failing to particularly point out and distinctly claim the
invention.
Claims 1—6, 9-15, and 18—24 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Galvin, Elias, and Kohler.
Claims 7, 8, 16, 17, and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Galvin, Elias, Kohler, and Bauer.
Claims 1—25 stand rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
Bauer
Elias
Galvin
Kohler
US 2005/0288981 A1
US 2009/0171752 A1
US 2010/0121672 A1
US 6,690, 788 B1 Feb. 10, 2004
Dec. 29, 2005
July 2, 2009
May 13,2010
4
Appeal 2014-009779
Application 13/213,002
ISSUES
The issues of indefiniteness turn primarily on whether it is necessary
to use the word “means” for construction under 35 U.S.C. § 112, sixth
paragraph. The issues of obviousness turn primarily on whether the art
shows it was predictable to apply predictive technology to identify subjects
of interest from customer interactions in a call center. The issues of
statutory subject matter turn primarily on whether the claims are directed to
more than abstract conceptual advice on gathering data for a call center.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Galvin
01. Galvin is directed to routing of transactions in contact center
environments. Galvin, para. 1.
02. Galvin describes history-based predictive routing in which
customer information along with past history regarding purchases,
credit, preferences, satisfaction level at last contact, and the like
are used to predict the type of product or service for the customer
and the agent that might best be able to service that customer. For
example, it may be known through past purchase history that a
certain customer buys a computer every two years on the average.
It has been 22 months since his last purchase, and he was
discontented somewhat during the last contact which was a service
call shortly after that last purchase. Using this information, the
5
Appeal 2014-009779
Application 13/213,002
system predicts that an agent specializing in servicing and selling
Pentiums, with considerable conflict resolution skill would best
handle that call. The customer may be queued for that agent even
if an agent of similar but different skill set is available. Id. at para.
11.
03. Galvin determined that there are better ways of routing
transactions in a call center than those used in the current art, and
that routing may best be performed by taking into account
expected profitability to be enjoyed by an enterprise hosing a
contact center. Galvin describes steps of (a) identifying an
initiator of a received transaction; (b) gathering information about
the initiator of the transaction; (c) determining agents available to
receive and service the transaction, and gathering information
about the agents; (d) using the gathered information, determining
a product or promotion; (e) forming combinations among the
available agents, the initiator, and the products; (f) determining
potential profit contribution or probability for individual ones of
the combinations formed in step (e); and (g) selecting an agent to
service the transaction based on the potential profitability
determined in step (f). Id. at para. 16.
04. Galvin describes data about a customer arriving at a
communication center ahead of an actual call. Id. at para. 26.
05. Many calls, for example, are sent to an IVR before being routed
to an agent. Selecting calls arriving simultaneously in the IVR
would not do much good, since routing occurs at the end of the
IVR treatment and calls stay in the IVR for varying amounts of
6
Appeal 2014-009779
Application 13/213,002
time. What is needed is to consider calls coming out of the IVR
and becoming available for routing to agents. Id. at para. 80.
Elias
06. Elias is directed to a customer support methodology which can
be enacted with a combination of automated support solutions and
support technicians for industries where there are services which
relate to a customer’s account(s). Its main purpose is the effective
use and acquisition of data to better understand the customer, the
product/service, and the support system in order to better handle
support issues that have and could possibly happen. The
innovation in customer support methodologies are established in
key general areas: profiling, support session routing,
authorization, verification, data convergence, data protection,
communication, predictive analysis, government compliance,
customer satisfaction, and preemptive actions. Elias, para. 3.
07. Elias describes a proactive approach to determining the
vulnerability, security, compliance, effectiveness of usage, and
overall customer satisfaction of a product/service with a minimal
support staff. Elias uses Predictive Account Maintenance and
Adaptive Support Reasoning to provide a system for analyzing
events and the customer to provide automated methodologies for
clarifying and acting upon knowledge of the customer, product,
and system. This methodology increases the productivity and
effectiveness of support personnel through a process of analyzing
events and user interactions (with the system) to supply behavioral
information to the support staff. The support staff then has the
7
Appeal 2014-009779
Application 13/213,002
ability to specify conditions in which the system must initiate
communication to the user through automated telephony, email, or
other communication methods and/or signal an analysis event
within the system. The conditions can be generic, recognized
patterns of activity, or a random sample of a specific set of
accounts. Id. at para. 4.
08. Elias describes using automated assistance by which the
consumer can perform many activities that previously can be done
only with direct interaction with live customer support personnel.
Id. at para. 5.
Kohler
09. Kohler is directed to managing customer service center
resources by monitoring a network. Kohler, para. 1.
10. Kohler describes the need to identify potential skill needs in
customer service center resources, search the network for needed
skills in the customer service center, and change the customer
service center based on potential needs. Id. at para. 2.
11. Kohler monitors the activity of customers, agents, and industry
experts in a network for new topics relevant to my business and
the interests in those topics. A determination is made
automatically if there is enough interest to warrant adding a skill.
If there is not enough interest, the system continues to monitor for
topics and interests. If there is enough interest, the system
automatically projects a resource needed for a skill. The system
monitors internal resources and the network to determine if the
resource needed for the skill exists in an internal resource. If the
8
Appeal 2014-009779
Application 13/213,002
resource needed for the skill exists in an internal resource, the skill
is reallocated and agents are assigned. If the resource needed for
the skill does exist in the internal resource, the system monitors
the network for an external resource that has the skill. Id. at para.
3.
12. Kohler’s topic identifier starts with a list of known customers,
agents, industry experts, and the like. The topic identifier
monitors the network for their conversations, posts, activities, etc.
The purpose of the topic identifier is to discover new topics in the
conversations that are related to the customer service center’s
business. A topic is typically a noun such as bicycle, telephone,
car, and the like. However, a topic can be a quantitative
measurement or why something happens. For example, a topic
can be the number of friends that someone has, the number of is
buddies in a buddy list, an event, and the like. Once identified, a
new topic is passed to the interest monitor which monitors the
network for interest. An interest can be a verb such as like,
dislike, problem, disagree, and the like. An interest can be the
increase and/or a decrease in conversations and/or activity about a
topic and/or an interest. The resource manager is configured to
determine if there is enough interest to warrant adding the skill.
The resource manager determines if there is enough interest to
warrant adding the skill based on rules. Id. at para. 14.
13. Kohler’s resource manager determines if the resource needed
for the skill exists in an internal resource. An internal resource
can be any type of or combination of customer service center
9
Appeal 2014-009779
Application 13/213,002
resources, such as one or more agents that handle calls, an IVR
system, a group, a network, a customer resource, an application, a
worker in a warehouse, a sales representative, and the like.
Determining if the resource needed for the skill exists could be
accomplished in various ways. For example, the resource
manager can scan profiles or resumes of agents to determine if any
of the agents have any experience supporting the XYZ telephone.
The resource manager can also direct the skill monitor to monitor
the network for an internal resource that has the skill. If the
resource needed for the skill exists in the internal resource, the
skill is reallocated and agents are assigned. If the resource needed
for the skill does not exist in the internal resource, the resource
manager directs the skill monitor to monitor the network for an
external resource that has the skill. Monitoring for an external
resource that has a skill can be accomplished by identifying
individuals who are discussing the skill on a website, by searching
resumes on a job site, and the like. Id. at para. 17—18.
14. Kohler’s resource manager notifies the work flow manager in
the customer service center of the resource needed for the skill in
the customer service center. The work-flow manager generates an
event and changes the call flow in the customer service center by
directing the IVR system to change the call flow in the IVR
system. The call flow is how a call gets routed in an IVR system.
For example, the user may hit *2 in a first menu to get routed to
technical support for bicycles and then hit *3 in a second menu to
get routed to a particular type of bicycle. The call flow can be
10
Appeal 2014-009779
Application 13/213,002
changed by adding a new menu option for support of a new
bicycle (e.g., *4 on the second menu). The IVR system can
change the call flow for both inbound calls to the customer service
center and outbound for calls from the customer service center.
Id. at para. 23.
ANALYSIS
Claims 19—22 rejected under 35 U.S.C. § 112, second paragraph, as failing
to particularly point out and distinctly claim the invention
The Examiner rejects these claims because claim 19 recites “a guided
support identification system, executed in the memory by the processor, to
. . . which the Examiner construes according to 35 U.S.C. § 112, sixth
paragraph, and finds no corresponding algorithmic structure in the
Specification. Appellants do not argue that there is such structure or that the
claim recitation following this phrase provides sufficient structure to
overcome such a construction. Thus, such potential arguments are waived.
Appellants instead argue that because there is no phrase “means for”
the limitation should not be construed as a means plus function limitation.
App. Br. 15.
The standard is whether the words of the claim are
understood by persons of ordinary skill in the art to have a
sufficiently definite meaning as the name for structure. When a
claim term lacks the word “means,” the presumption can be
overcome and § 112, para. 6 will apply if the challenger
demonstrates that the claim term fails to “recite sufficiently
definite structure” or else recites “function without reciting
sufficient structure for performing that function.”
11
Appeal 2014-009779
Application 13/213,002
Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (2015) (citations
omitted). Here the word “system” like the word “module” in Williamson,
imparts no meaning of structure. The term “system”
is simply a generic description for software or hardware that
performs a specified function.” Generic terms such as
“mechanism,” “element,” “device,” and other nonce words that
reflect nothing more than verbal constructs may be used in a
claim in a manner that is tantamount to using the word “means”
because they “typically do not connote sufficiently definite
structure” and therefore may invoke § 112, para. 6.
Id. at 1350. The prefixes “guided,” “support,” and “identification” do not
impart structure into the term “system.” These words do not describe a
sufficiently definite structure. Again, Appellants do not contend that the
limitation recites sufficient structure for performing that function.
Claims 1—6, 9—15, and 18—24 rejected under 35 U.S.C. § 103(a) as
unpatentable over Galvin, Elias, and Kohler
The Examiner finds that Galvin describes a conventional call center
using interactive voice recognition software and so describes the first and
last limitations of claim 1. The Examiner also cites Elias as confirming what
is inherent in Galvin of the customer operating the software without
intervention by a human prior to the call center reaching a support person.
Galvin also describes predictive routing technology and how such data may
arrive at a call center before the call itself. Final Act. 10—12. The issues
then devolve to whether the art describes the prediction and identification of
the second and third steps prior to the fourth step.
The Examiner finds that Elias describes predictive technology that
automates the analysis of customer interactions to take a proactive approach
12
Appeal 2014-009779
Application 13/213,002
toward customer interaction. Thus Elias describes an implementation to
meet the need described by Galvin for predictive technology in routing calls.
This describes the second limitation of predicting subject matter while the
customer is navigating prior to reaching a customer service person. Final
Act. 12-15.
The Examiner finds that Kohler describes identifying required skill
sets based on monitoring customer interaction as in Elias. Id. at 15—18. So
the issues further devolve to whether the art describes the particular data
recited being identified.
At this point, we find that this issue is somewhat degenerate for
structural claims 10—22. Such claims must be distinguished from the prior
art in terms of structure rather than function. See, e.g., In re Schreiber, 128
F.3d 1473, 1477—78 (Fed. Cir. 1997). In order to satisfy the functional
limitations in an apparatus claim, however, the prior art apparatus as
disclosed must be capable of performing the claimed function. Id. at 1478.
As Elias and Kohler describe generic analysis, their descriptions describes a
capacity for identifying almost any information, and certainly for identifying
generic and particular information regarding an arbitrary subject of interest.
As to the method claims, Kohler describes using both menu buttons
and interaction analysis for routing. The menu button examples show a two
tier generic and specific subject for bicycles. One of ordinary skill would
immediately see this is equally applicable to the interaction analysis routing
as well.
Separately argued claims 3—5, 12, and 13 recite limitations inherent in
any user interface that by its nature loops through the code while waiting for
input.
13
Appeal 2014-009779
Application 13/213,002
As to separately argued claims 6, 9, 23, and 24, we are persuaded by
Appellants’ argument that the Examiner fails to present findings as to
specific limitations added in these claims.
The remaining claims are not separately argued.
Claims 7, 8, 16, 17, and 25 rejected under 35 U.S.C. § 103(a) as
unpatentable over Galvin, Elias, Kohler, and Bauer
As to claims 7, 8, 16, and 17, we are persuaded by Appellants’
argument that Bauer fails to describe transmitting a query to the remote
device to prompt the user for input wherein the query is generated based on
the user interaction and the presentation being navigated. App. Br. 28—29.
As to claim 25, we are not persuaded by Appellants’ argument that
Bauer fails to describe the particular table recited. Id. at 33. Bauer describes
using look up tables for similar types of processing, and the notoriety of
such table would make it predictable for one of ordinary skill to apply them
as an implementation for Kohler’ matching.
Claims 1—25 rejected under 35 U.S.C. § 101 as directed to non-statutory
subject matter
The Examiner finds that the claims are directed to the idea of
providing support services to users of products and that this is a fundamental
economic practice. The Examiner then finds that the additional limitations
amount(s) to no more than: (i) mere instructions to implement
the idea on a computer, and/or (ii) recitation of generic
computer structure that serves to perform generic computer
functions that are well-understood, routine, and conventional
activities previously known to the pertinent industry. Viewed as
a whole, these additional claim element(s) do not provide
14
Appeal 2014-009779
Application 13/213,002
meaningful limitation(s) to transform the abstract idea into a
patent eligible application of the abstract idea such that the
claim(s) amounts to significantly more than the abstract idea
itself.
Ans. 27—28. We agree and adopt these findings.
We are not persuaded by Appellants’ argument that the claims
include specific limitations that clearly improve the efficiency
of a support center or call center and improve customer’s
satisfaction by monitoring a customer’s interaction with the
content presentation, dynamically determining what the
customer is currently accessing, and determining a skill set that
is required to provide support for the subject matter the
customer is currently interested in. The invention as claimed
clearly improves the intelligent routing of the potential support
calls that may be received at a call center.
Reply Br. 3. This is a common line of argument that overlooks the fact that
abstract ideas employed as generic advisory concepts frequently improve
efficiencies and improve operations. The issue is whether these advisory
concepts are then drafted into concrete technological implementations based
on those concepts. Put another way, do the limitations do more than recite
the desired outcome by also reciting the implementation for realizing such
outcome. The limitations of claim 1 are (1) tracking user interaction; (2)
predicting subject matter of interest; (3) identifying required skill sets; and
(4) requesting a live support. All of these steps are those typically required
of a good conversationalist and have little to do with technology per se. The
claim goes on to further recite that the first three steps receive and access
data and determine skill sets. These are generic computer operations as no
particular implementation is recited.
15
Appeal 2014-009779
Application 13/213,002
We are not persuaded by Appellants’ argument that the claims recite a
solution to a problem without requiring a live support agent involved. Reply
Br. 5. Any use of a computer in place of a person does as much.
We are not persuaded by Appellants’ argument that of the operations
are performed within the same user session of the presentation. Id. Again, a
generic computer performs such generic multitasking.
CONCLUSIONS OF LAW
The rejection of claims 19-22 under 35U.S.C. § 112, second
paragraph, as failing to particularly point out and distinctly claim the
invention is proper.
The rejection of claims 1—5, 10—15, and 18—22 under 35 U.S.C.
§ 103(a) as unpatentable over Galvin, Elias, and Kohler is proper.
The rejection of claims 6, 9, 23, and 24 under 35 U.S.C. § 103(a) as
unpatentable over Galvin, Elias, and Kohler is improper.
The rejection of claim 25 under 35 U.S.C. § 103(a) as unpatentable
over Galvin, Elias, Kohler, and Bauer is proper.
The rejection of claims 7, 8, 16, and 17 under 35 U.S.C. § 103(a) as
unpatentable over Galvin, Elias, Kohler, and Bauer is improper.
The rejection of claims 1—25 under 35 U.S.C. § 101 as directed to
non-statutory subject matter is proper.
DECISION
The rejection of claims 1—25 is affirmed.
16
Appeal 2014-009779
Application 13/213,002
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv) (2011).
AFFIRMED
17