Mattersight Corporation

Patent Trials and Appeals Board

Aug 3, 2020

14078184 - (D) (P.T.A.B. Aug. 3, 2020)

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.
14/078,184 11/12/2013 David GUSTAFSON 49310.34_81625 3147
27683 7590 08/03/2020
HAYNES AND BOONE, LLP
IP Section
2323 Victory Avenue
Suite 700
Dallas, TX 75219
EXAMINER
DELICH, STEPHANIE ZAGARELLA
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
08/03/2020 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):
ipdocketing@haynesboone.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID GUSTAFSON, CHRISTOPHER DANSON, TOMASZ
STADNIK, JESSICA LEIGH HEMPEL, RACHEL JEAN STARK, and
ALAIN STEPHAN
Appeal 2020-000900
Application 14/078,184
Technology Center 3600
Before CAROLYN D. THOMAS, ADAM J. PYONIN, and
PHILLIP A. BENNETT, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. An oral hearing was held on July 7, 2020. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Mattersight
Corporation, which is a subsidiary of NICE Ltd. Appeal Br. 3.
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Application 14/078,184

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STATEMENT OF THE CASE
Introduction
The Application is directed to “extract[ing] information from a
customer communication and us[ing] it to calculate a weighted promoter
score” (Spec. ¶ 5), which “can then be used by a company to better focus its
internal actions to improve customer satisfaction” (Spec. ¶ 17). Claims 1, 3,
4, 8, 10, 11, 15, 17, 22–24, and 39–53 are pending; claims 1, 8, 15, and 22
are independent. Appeal Br. 22–30. Claim 1 is reproduced below for
reference (with bracketed identifiers and emphasis added):
1. A system for providing a predicted customer satisfaction
score of a customer of an organization to facilitate routing,
comprising:
[a] an Internet Protocol Private Branch Exchange
(IP/PBX) circuit;
[b] a telephony server; and
[c] a node comprising a processor and a non-transitory
computer readable medium operably coupled thereto, the non-
transitory computer readable medium comprising a plurality of
instructions stored in association therewith that are accessible to,
and executable by, the processor, where the plurality of
instructions comprises:
[d] instructions that, when executed, receive, via the
telephony server, a plurality of communications from a plurality
of customers of the organization, wherein the plurality of
communications comprise audio communications, text
communications, social media communications, internet
communications, or a combination thereof;
[e] instructions that, when executed, analyze each of the
plurality of communications to generate a plurality of data
attributes, including at least customer personality type and
customer satisfaction survey results of each of the plurality of
customers, for each of the plurality of communications;
[f] instructions that, when executed, correlate customer
personality type to customer satisfaction survey results;
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[g] instructions that, when executed, identify a customer
personality type that is associated with personality bias based on
the correlation;
[h] instructions that, when executed, determine how the
personality bias affects the customer satisfaction survey results;
[i] instructions that, when executed, receive, via the
telephony server, a telephonic communication from a customer;
[j] instructions that, when executed, extract a plurality of
data attributes, including a personality type of the customer, from
the telephonic interaction;
[k] instructions that, when executed, predict a customer
satisfaction score of the customer based on the personality type
of the customer and the correlation;
[l] instructions that, when executed, determine whether the
personality type of the customer is associated with personality
bias;
[m] instructions that, when executed, correct the predicted
customer satisfaction score for personality bias based on the
determination whether the personality bias affects the customer
satisfaction survey results;
[n] instructions that, when executed, compare customer
data of the customer and agent data of a plurality of agents to
determine which agents from the plurality of agents possess
skills in handling customers with the corrected predicted
customer satisfaction score; and
[o] instructions that, when executed, route, via the IP/PBX
circuit, the telephonic interaction to a workstation of an agent
from the plurality of agents that possess skills in handling
customers with the corrected predicted customer satisfaction
score.

References and Rejections
Claims 1, 3, 4, 8, 10, 11, 15, 17, 22–24, and 39–53 stand rejected
under 35 U.S.C. § 112(a) as failing to comply with the written description
requirement. Non-Final Action mailed May 16, 2019 (“Non-Final Act.”) at
8.
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Claims 1, 3, 4, 8, 10, 11, 15, 17, 22–24, and 39–53 stand rejected
under 35 U.S.C. § 101 as being patent ineligible. Non-Final Act. 10.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant does
not separately argue the claims. See Appeal Br. 14, 20. We select claim 1
as representative. See 37 C.F.R. §41.37(c)(1)(iv).

Written Description
The Examiner finds the claims lack sufficient written description
support for the required “predicting a customer satisfaction score based on
the personality type and the correlation as well as correcting the predicted
customer satisfaction score for bias.” Non-Final Act. 8. The Examiner
explains that “the Specification “do[es] not detail how the scores are
generated” (Ans. 5), and “without knowing how the initial score is
determined, there is no way to know how the further manipulation would be
accomplished” (Ans. 4).
Appellant argues “[o]ne of ordinary skill in the art would have
understood that the inventors had full possession of how to predict customer
satisfaction scores, based on the guidance in the Specification,” because “the
distinguishing identifying characteristic of the customer satisfaction score is
that it is based on at least the personality type of the customer.” Appeal Br.
12–13 (citing the Declaration of David Gustafson filed on April 4, 2019
pursuant to 37 C.F.R. § 1.132 (“Gustafson Declaration”)). Appellant argues
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“[t]he specific algorithm used to transform the personality type and other
input attributes into the customer satisfaction score does not need to be
specified” (Reply Br. 3), and “[a]t the time the present application was filed,
it was known how to train algorithms to learn patterns” (Appeal Br. 13).
We are not persuaded the Examiner errs in rejecting the claims under
35 U.S.C. § 112(a), and we adopt as our own the Examiner’s findings and
reasoning therein. Appellant’s Briefs and the Gustafson Declaration merely
explain that one of ordinary skill could have programmed a computer to
predict a customer satisfaction score, as claimed; there is no persuasive
showing that the inventors possessed the invention. See, e.g., Gustafson
Declaration at 13 (“One of ordinary skill in the art would accordingly have
known how to generate a predicted customer satisfaction score from the
personality type from the prior art coupled with guidance from the present
Specification.”). This is insufficient to show written description support for
the disputed limitation. See Non-Final Act. 4; Examining Computer-
Implemented Functional Claim Limitations for Compliance with 35 U.S.C.
112, 84 Fed. Reg. 57, 62 (Jan. 7, 2019) (“It is not enough that one skilled in
the art could theoretically write a program to achieve the claimed function,
rather the specification itself must explain how the claimed function is
achieved to demonstrate that the applicant had possession of it.”). As
correctly identified by the Examiner, “[t]he specification discloses that there
is a relationship between personality type and customer satisfaction survey
results but there is not detail with regards to using machine learning
algorithms to build an algorithm to output a predicted score.” Ans. 4; see
also Ans. 6 (“The ‘scoring module’ is therefore considered merely a ‘black
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box’ and does not provide sufficient detail with regards to how scores
actually generated from the attribute data.”).
Claim 1 recites instructions to (1) “predict a customer satisfaction
score of the customer based on the personality type of the customer and the
correlation [of the personality type to customer satisfaction survey results],”
and to (2) “correct the predicted customer satisfaction score for personality
bias based on the determination whether the personality bias affects the
customer satisfaction survey results.” The Specification, although
describing a method for correcting a particular satisfaction score to account
for certain personality types (Spec. ¶ 51), provides no similar disclosure for
predicting a satisfaction score. See Ans. 5–7. Accordingly, we agree with
the Examiner that Appellant has not shown the inventors had possession of
the “predict a customer satisfaction score” limitation. See Non-Final Act. 9.
We sustain the Examiner’s written description rejection of
independent claim 1.

Patent Eligibility
The Examiner determines the claims are patent ineligible under 35
U.S.C. § 101, because the claims are “directed to an abstract idea without
significantly more.” Non-Final Act. 10; see Alice Corp. v. CLS Bank Int’l,
573 U.S. 208, 217–218 (2014) (describing the two-step framework “for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts”).
In 2019, the U.S. Patent and Trademark Office (USPTO) published
revised guidance on the application of § 101 (“Guidance”). See 2019
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Revised Patent Subject Matter Eligibility Guidance Notice, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Notice”); see also USPTO, October 2019 Update: Subject
Matter Eligibility (“October Update”) at 17 (available at https://www.uspto.
gov/sites/default/files/documents/peg_oct_2019_update.pdf). “All USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance.” Notice, 84 Fed. Reg. at 51; see also October Update
at 1.
Under the Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).
Notice, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial
exception and (2) does not integrate that exception into a practical
application, does the Office then look, under Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
Notice, 84 Fed. Reg. at 52–56.
We agree with, and adopt as our own, the Examiner’s eligibility
analysis, to the extent consistent with our analysis herein. We add the
following primarily for emphasis and clarification with respect to the
Guidance.
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A. Step 2A, Prong One
We agree with the Examiner that claim 1 recites “a certain method of
organizing human activity as well since the overall concept relates to
decision making and assigning work to agents.” Ans. 8. Limitations [d] and
[i] receive data regarding customer communication. See Appeal Br. 22.
Limitations [e] and [j] analyze data to determine “data attributes” including a
customer personality type. Id. Limitations [f], [g] [h], and [l] analyze the
personality types with respect to customer survey satisfaction results and
personality bias. Id. Limitations [k] and [m] recite analysis to determine a
corrected predicted customer satisfaction score. Id. at 22, 23. These
limitations analyze data to determine which agent will handle a given
customer. Then, limitations [n] and [o]2 route the customer’s telephone call
to the appropriate agent based on the analyses. Id. at 23. Limitations [d]–[o]
recite “business relations” and “following rules and instructions,” and
exemplify “commercial or legal interactions” and “managing personal
behavior or relationships or interactions between people.” Notice, 84 Fed.
Reg. at 52. The claim therefore recites an abstract concept of “[c]ertain
methods of organizing human activity” pursuant to the Guidance. Id.; cf.
Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1312 (Fed.
Cir. 2016) (determining claims reciting, inter alia, routing of
communications, were patent ineligible); Customedia Techs., LLC v. Dish

2 We agree with the Examiner that the recitation in limitation [o] of “via the
IP/PBX circuit” is an additional element, beyond the recited judicial
exception. Non-Final Act. 10; see also Notice, 84 Fed. Reg. at 55 n.24
(“USPTO guidance uses the term ‘additional elements’ to refer to claim
features, limitations, and/or steps that are recited in the claim beyond the
identified judicial exception.”).
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Network Corp., 951 F.3d 1359, 1362 (Fed. Cir. 2020) (“The claims at issue
here are directed to the abstract idea of using a computer to deliver targeted
advertising to a user . . . .”); Evolutionary Intelligence LLC v. Sprint Nextel
Corp., 677 F. App’x 679, 680 (Fed. Cir. 2017) (“Here, the claims are
directed to selecting and sorting information by user interest or subject
matter, a longstanding activity of libraries and other human enterprises.”);
Reese v. Sprint Nextel Corp., 774 F. App’x 656, 660 (Fed. Cir. 2019) (“The
claims are directed to the abstract idea of receiving information (a calling
phone number flagged as private) and sending an indication (an audible
tone) to a party already engaged in a call.”); Bridge & Post, Inc. v. Verizon
Commc'ns, Inc., 778 F. App’x 882, 887 (Fed. Cir. 2019) (“Targeted
marketing is a form of ‘tailoring information based on [provided] data,’
which we have previously held is an abstract idea.” (citing Intellectual
Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369 (Fed. Cir.
2015))).
Appellant argues that “that not all methods of organizing human
activity are abstract ideas.” Reply Br. 5. Although this statement is correct,
Appellant has not shown that the above-discussed limitations are “beyond
the[] enumerated sub-groupings” identified by the Guidance. October
Update at 5. Appellant’s characterization of the claims further supports the
Examiner’s determination, because Appellant’s stated goal is one of
organizing the human activity of analyzing customers and directing their
service calls. See Reply Br. 5 (“[T]he goal of the analysis of the personality
type and customer satisfaction survey results is to route the customer to an
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agent that possesses skills in handling customers with the corrected customer
satisfaction score.”).3
As we agree with the Examiner that independent claim 1 recites a
judicial exception under Prong One of the Guidance, we continue our
analysis under Prong Two. See Notice, 84 Fed. Reg. at 54; October Update
at 10.

B. Step 2A, Prong Two
Appellant contends independent claim 1 “as a whole integrate[s] the
alleged abstract idea into a practical application,” because the claim “limits
the use of the invention to the practical application of routing a telephonic
communication of a customer having a corrected predicted customer
satisfaction score to an agent that possesses skills in handling customers with
the corrected predicted customer satisfaction score.” Appeal Br. 17, 18.
Appellant further argues “the efficiency and efficacy of the contact center is
increased because a customer is not routed from one agent to another agent
in an attempt to find the best-suited agent to talk to the customer,” as instead
“the customer is immediately connected to the agent that will provide the
best outcome.” Id. at 18.
Claim 1 recites an “Internet Protocol Private Branch Exchange
(IP/PBX) circuit,” a “telephony server,” and “a node comprising a processor
and a non-transitory computer readable medium,” and “via the IP/PBX

3 We note that “activity that involves multiple people (such as a commercial
interaction), and thus, certain activity between a person and a computer (for
example a method of anonymous loan shopping that a person conducts using
a mobile phone) may fall within the ‘certain methods of organizing human
activity’ grouping.” October Update at 5.
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circuit.” Appeal Br. 22, 23. Pursuant to the Guidance, these are additional
elements beyond the recited judicial exception. See Notice, 84 Fed. Reg. at
54, 55; Non-Final Act. 10, 11; Ans. 8. We disagree with Appellant’s
contentions that such limitations remove the claims from the realm of
ineligible subject matter. Rather, these limitations merely require “the
generic recitation of computer components that apply the exception in a
technological environment.” Ans. 8. Nor are we persuaded the claim’s
specificity establishes patent eligibility. Cf. Alice, 573 U.S. at 222 (“In
holding that the process was patent ineligible, we rejected the argument that
‘implement[ing] a principle in some specific fashion’ will ‘automatically
fal[l] within the patentable subject matter of § 101.’” (alterations in original)
(quoting Parker v. Flook, 437 U.S. 584, 593 (1978))). The claim limits the
recited abstract idea to a particular communication system, which does not
use “the judicial exception in some other meaningful way beyond generally
linking the use of the judicial exception to a particular technological
environment.” Notice, 84 Fed. Reg. at 55; Ans. 8.
Furthermore, we are not persuaded the Examiner errs in determining
the recited “computer elements merely act as a tool to implement the
disclosed methodology in a computerized environment and do not illustrate
an improvement to the functioning of the computer or any other technology
or technical field.” Ans. 9. Appellant’s arguments regarding routing
efficiency yielding benefits to the underlying phone system (see, e.g.,
Appeal Br. 18) are not explained in the Specification,4 or otherwise

4 Rather than providing technical benefits, the Specification discusses
improvements to a customer center by increasing customer satisfaction. See
Spec. ¶ 17 (“The NPS® can then be used by a company to better focus its
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supported by evidence or persuasive technical reasoning; thus, these
arguments do not persuade us the Examiner’s analysis is in error. See
October Update at 12 (“[F]irst the specification should be evaluated to
determine if the disclosure provides sufficient details such that one of
ordinary skill in the art would recognize the claimed invention as providing
an improvement.”), 13 (“If the examiner concludes the disclosed invention
does not improve technology, the burden shifts to applicant to provide
persuasive arguments supported by any necessary evidence to demonstrate
that one of ordinary skill in the art would understand that the disclosed
invention improves technology.”); Ans. 8, 9.
Based on the record before us, we are not persuaded the Examiner errs
in determining the recited additional elements “are not integrated into a
practical application, and therefore the claim limitations are considered
directed to an abstract idea.” Ans. 8. As the claim recites a judicial
exception and fails to integrate the exception into a practical application, the
claim is “directed to the . . . judicial exception.” Notice, 84 Fed. Reg. at 54.

B. Step 2B
Appellant contends the recited “methods use a combination of
particular machines to more efficiently route telephonic communications to a
suitable agent,” including an “IP/PBX circuit [that] is more than a generic
computer element.” Appeal Br. 19. Appellant further contends the claimed

internal actions to improve customer satisfaction and its NPS.”); ¶ 52
(“[T]he present disclosure . . . allows a company to more accurately and
efficiently direct its internal actions to improve its customer satisfaction.”).
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“combination of devices is non-conventional and not well-known.” Id. at 20
(emphasis omitted).
We are not persuaded the Examiner errs. As discussed above with
respect to Prong Two, Appellant has not shown that claim 1 recites a
technological improvement. See Ans. 9. Further, the Examiner reasonably
determines that the additional elements recited by independent claim 1—
individually and in combination—are well understood, routine, and
conventional. See Ans. 10. The recited IP/PBX circuit is a conventional
system used to allow “IP telephony systems [to] be integrated with the
public telephone system.” Spec. ¶ 28; see also Spec. ¶¶ 26, 29. The
remaining additional elements (a telephony server, node, and workstation of
an agent) are similarly well understood, routine, and conventional in view of
the record before us. See Non-Final Act. 11, 12; Ans. 10; Spec. ¶¶ 20, 22,
26–33, 36, 37, and 61–67; cf. Alice, 573 U.S. at 226. Nor has Appellant
persuasively shown that the additional elements in combination, with each
other or the recited abstract concept, yield an inventive concept pursuant to
Step 2B of the Guidance. See Notice, 84 Fed. Reg. at 56; Ans. 10; cf. In re
TLI Commc'ns LLC Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016) (“We
agree with the district court that the claims’ recitation of a ‘telephone unit,’ a
‘server’, an ‘image analysis unit,’ and a ‘control unit’ fail to add an inventive
concept sufficient to bring the abstract idea into the realm of patentability.”).
Thus, we determine the claim limitations, individually and as an ordered
combination, do not amount to significantly more than the recited exception
itself.
We are not persuaded the Examiner errs in determining independent
claim 1 is patent ineligible. We sustain the Examiner’s eligibility rejection.
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DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 8, 10,
11, 15, 17, 22–
24, 39–53
112 Written
Description
1, 3, 4, 8,
10, 11, 15,
17, 22–24,
39–53

1, 3, 4, 8, 10,
11, 15, 17, 22–
24, 39–53
101 Eligibility 1, 3, 4, 8,
10, 11, 15,
17, 22–24,
39–53

Overall
Outcome
1, 3, 4, 8,
10, 11, 15,
17, 22–24,
39–53

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED