NICE Ltd.

Patent Trials and Appeals Board

Jul 12, 2021

IPR2020-00245 (P.T.A.B. Jul. 12, 2021)

Trials@uspto.gov Paper 42
571-272-7822 Entered: July 12, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

CALLMINER, INC.,
Petitioner,

v.

NICE LTD.,
Patent Owner.
_____________

IPR2020-00245
Patent 8,553,872 B2
____________

Before KEVIN F. TURNER, TERRENCE W. MCMILLIN, and
STACY B. MARGOLIES, Administrative Patent Judges.

MARGOLIES, Administrative Patent Judge.

JUDGMENT
Final Written Decision
Determining Some Challenged Claims Unpatentable
35 U.S.C. § 318(a)

IPR2020-00245
Patent 8,553,872 B2
2
I. INTRODUCTION
In this inter partes review, instituted pursuant to 35 U.S.C. § 314,
CallMiner, Inc. (“Petitioner”) challenges the patentability of claims 1, 2, and
4–6 of U.S. Patent No. 8,553,872 B2 (Ex. 1002, “the ’872 patent”), owned
by NICE Ltd. (“Patent Owner”). We have jurisdiction under 35 U.S.C. § 6.
This Final Written Decision is entered pursuant to 35 U.S.C. § 318(a) and
37 C.F.R. § 42.73. For the reasons discussed below, Petitioner has shown
by a preponderance of the evidence that claims 1, 2, and 4 of the ’872 patent
are unpatentable but has not shown by a preponderance of the evidence that
claims 5 and 6 of the ’872 patent are unpatentable.
A. Procedural History
Petitioner filed a petition for inter partes review of claims 1, 2, and 4–
6 of the ’872 patent. Paper 2 (“Pet.”). Patent Owner filed a Preliminary
Response. Paper 9 (“Prelim. Resp.”). On July 13, 2020, we instituted an
inter partes review of claims 1, 2, and 4–6 of the ’872 patent on the
following ground:
Claims Challenged 35 U.S.C. § References/Basis
1, 2, 4–6 103 Margulies I
1 (incorporating
Margulies II,2 Ezerzer3), Wentink4

1 U.S. Patent No. 8,583,466 B2, filed Mar. 21, 2006, issued Nov. 12, 2013
(Ex. 1002).
2 U.S. Patent No. 8,885,812 B2, filed Mar. 15, 2006, issued Nov. 11, 2014
(Ex. 1003).
3 U.S. Patent No. 7,366,293 B2, filed Mar. 2, 2001, issued Apr. 29, 2008
(Ex. 1004).
4 U.S. Patent Application Publication No. 2009/0003566 A1, filed June 29,
2007, published Jan. 1, 2009 (Ex. 1005).
IPR2020-00245
Patent 8,553,872 B2
3
Paper 8 (“Inst. Dec.”), 7, 23–24.
Subsequent to institution, Patent Owner filed a Patent Owner
Response (Paper 21, “PO Resp.”), Petitioner filed a Reply (Paper 28,
“Reply”), and Patent Owner filed a Sur-reply (Paper 37, “Sur-reply”).
Petitioner relies on the Declaration of Benedict Occhiogrosso (Ex. 1006) and
the Declaration of Benedict Occhiogrosso in Support of Petitioner’s
Response (Ex. 1016). Patent Owner relies on the Declaration of Ivan
Zatkovich (Ex. 2005).
We held an oral argument on April 13, 2021. A copy of the transcript
of that argument was entered into the record. Paper 41 (“Tr.”).
B. Related Matters
The parties identify the following judicial proceeding in which the
’872 patent is asserted and which may affect, or be affected by, a decision in
this proceeding: NICE Ltd. v. CallMiner, Inc., Civil Action No. 1:18-cv-
02024-RGA-SRF (D. Del). Pet. 3; Paper 3, 1; see 37 C.F.R. § 42.8(b)(2).
C. The ’872 Patent
The ’872 patent is titled “Method and System for Managing a Quality
Process.” Ex. 1001, [54]. The ’872 patent discloses that many businesses
and organizations use call centers to handle interactions with customers and
that quality management of call centers is a valuable tool for maintaining
and increasing performance, efficiency, and productivity. Id. at 1:6–17.
According to the ’872 patent, “selecting calls for evaluation from thousands
of recorded calls held by dozens of agents may be an overwhelming task”
and randomly selecting calls “may severely limit or reduce possible benefits
of an evaluation.” Id. at 1:33–39. The ’872 patent describes embodiments
of an invention that “enable automatically selecting calls for evaluation
IPR2020-00245
Patent 8,553,872 B2
4
based on any number of parameters, indications, rules, thresholds, criteria,
. . . or any other applicable data or information.” Id. at 3:19–23. For
example, according the ’872 patent, “a quality plan may define any
applicable parameters for selecting calls or interactions for evaluation.” Id.
at 3:23–26.
The ’872 patent describes defining a quality task that “may be
executed upon detecting various conditions,” such as breach of an associated
key performance indicator (“KPI”). Id. at 4:54–57, 6:4–5, 6:22–26.
According to the ’872 patent, examples of KPIs include call duration,
average holding time, the time an agent took for completing an online form,
and whether the call resulted in a sale. Id. at 5:44–46, 5:48–58.
Figures 2A–2E of the ’872 patent illustrate views of computer screens
for defining a quality task. Id. at 6:13–14. Figure 2C is shown below.

Figure 2C above illustrates a computer screen for selecting a KPI to
be associated with a quality task. Id. at 6:13–14, 7:57–59. As shown in
IPR2020-00245
Patent 8,553,872 B2
5
block 237, “a user may configure a quality task to be activated upon a
breaching of an associated KPI.” Id. at 8:2–4. For example, as illustrated,
the quality task may be activated if the KPI was breached for more than five
days. Id. at 8:5–7. The ’872 patent also discloses associating an evaluation
form with the quality task. Id. at 8:10–12.
Figure 4 of the ’872 patent, below, illustrates a flowchart of steps to
implement embodiments of the invention. Id. at 10:46–48.

As illustrated above, step 410 is detecting a predefined event, such as
a breach of a KPI. Id. at 10:46–48. At step 415, a quality task is activated.
Id. at 11:8. At step 420, interactions are selected for evaluation. Id. at
11:15–17. The ’872 patent discloses that “any applicable criteria may be
used for selecting interactions for evaluation,” such as breaching of a KPI, a
quota related to an agent, and a quota related to a quality manager. Id. at
11:17–26. Next, at step 425, selected interactions are provided to a quality
IPR2020-00245
Patent 8,553,872 B2
6
manager for evaluation. Id. at 11:43–44. At step 430, the evaluation process
is monitored. Id. at 11:49–50. For example, according to the ’872 patent,
the number of evaluated interactions may be compared to a predefined quota
of evaluations to be performed by a particular quality manager. Id. at 11:50–
53.
At step 435, indications and/or reports related to the evaluated
interactions are generated. Id. at 11:58–63. At step 440, based on a result of
the evaluation process, an action is performed, such as launching a coaching
package, scheduling a meeting of an evaluated agent with a superior, or
updating an agent’s record. Id. at 12:22–34.
D. Illustrative Claim
Among the challenged claims (claims 1, 2, and 4–6), claim 1 is
independent. Claim 1 is illustrative of the subject matter of the challenged
claims and reads as follows:
1. A computer-implemented method for performing a
quality evaluation, the method comprising:
accepting a definition of a quality task associated with a
predefined evaluation form, wherein the definition of the
quality task is based on quality task parameters selected by a
user on a graphical user interface;
activating the quality task upon detecting breaching of a
predefined key performance indicator (KPI);
selecting from a plurality of interaction recordings one or
more selected interaction recordings for evaluations, the one or
more interactions recordings selected with relation to said
quality task;
associating the selected interaction recordings with the
predefined evaluation form;
displaying a graphical representation of the one or more
interaction recordings and the evaluation form, wherein the
IPR2020-00245
Patent 8,553,872 B2
7
evaluation form is used to evaluate the one or more interaction
recordings; and
performing at least one predefined action based on the
results.
Id. at 14:37–58.
II. DISCUSSION
A. Principles of Law
To prevail in its challenge to Patent Owner’s patent claims, Petitioner
must demonstrate by a preponderance of the evidence that the claims are
unpatentable. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). “In an [inter partes
review], the petitioner has the burden from the onset to show with
particularity why the patent it challenges is unpatentable.” Harmonic Inc. v.
Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C.
§ 312(a)(3) (requiring inter partes review petitions to identify “with
particularity . . . the evidence that supports the grounds for the challenge to
each claim”)). The burden of persuasion never shifts to Patent Owner. See
Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378
(Fed. Cir. 2015) (citing Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d
1316, 1326–27 (Fed. Cir. 2008)) (discussing the burden of proof in inter
partes review).
A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
between the claimed subject matter and the prior art are such that the subject
matter, as a whole, would have been obvious at the time of the invention to a
person having ordinary skill in the art. KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 406 (2007). The question of obviousness is resolved on the basis
of underlying factual determinations including the following: (1) the scope
IPR2020-00245
Patent 8,553,872 B2
8
and content of the prior art; (2) any differences between the claimed subject
matter and the prior art; (3) the level of ordinary skill in the art; and
(4) objective evidence of nonobviousness.5 Graham v. John Deere Co., 383
U.S. 1, 17–18 (1966). “A determination of whether a patent claim is invalid
as obvious under § 103 requires consideration of all four Graham factors,
and it is error to reach a conclusion of obviousness until all those factors are
considered.” Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1048 (Fed.
Cir. 2016) (en banc) (citations omitted). “This requirement is in recognition
of the fact that each of the Graham factors helps inform the ultimate
obviousness determination.” Id.
B. Level of Ordinary Skill
Petitioner asserts that a person of ordinary skill in the art “would have
held a bachelor’s degree in electrical engineering, computer engineering, or
telecommunications engineering, and would have had a combined 3 to 5
years of experience working in the technical fields of: (1) telephone
communications systems design and implementation; (2) voice/audio
digitization and digital recording; and (3) Computer Telephony Integration
(CTI).” Pet. 7 (citing Ex. 1006 ¶ 56). Petitioner adds that a person of
ordinary skill in the art “would also have had 1 year of experience in call or
contact center design and operations, including work force quality
management.” Id. Petitioner also asserts that “[a]dditional formal technical
education could substitute for less technical experience, and vice versa.” Id.

5 The parties do not address objective indicia of nonobviousness, which
accordingly do not form part of our analysis.
IPR2020-00245
Patent 8,553,872 B2
9
Patent Owner disagrees with Petitioner’s assessment of the level of
ordinary skill, asserting that the educational background is too narrow and
that the work experience is incorrect. PO Resp. 8–10. Specifically, Patent
Owner asserts that an ordinarily skilled artisan “would have held a
bachelor’s degree in electrical engineering, computer engineering,
telecommunications engineering, computer science, or a related field, and
would have had 1 to 3 years of experience working in call or contact center
design and operations, including work force quality management.” PO
Resp. 9–10 (citing Ex. 2005 ¶ 29). Like Petitioner, Patent Owner asserts
that “[a]dditional formal technical education could substitute for less
technical experience, and vice versa.” Id. at 10.
Neither party asserts that the patentability issues turn on the level of
ordinary skill that we adopt. See Tr. 36:14–19; Ex. 2005 ¶ 25 (Patent
Owner’s declarant stating that, “[w]hile I disagree with Petitioner’s proposed
definition of a [person of ordinary skill in the art, my opinions would not
change if Petitioner’s level of ordinary skill was adopted in this
proceeding”). We determine that the level of ordinary skill proposed by
Petitioner is consistent with the challenged patent and the asserted prior art
and we therefore adopt that level for purposes of our analysis below.
C. Claim Construction
In an inter partes review based on a petition filed on or after
November 13, 2018, we apply the same claim construction standard that
would be used in a civil action under 35 U.S.C. § 282(b), following the
standard articulated in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir.
2005) (en banc). 37 C.F.R. § 42.100(b) (2019); 83 Fed. Reg. 51,340,
51,340–41, 51,343 (Oct. 11, 2018). In applying such standard, claim terms
IPR2020-00245
Patent 8,553,872 B2
10
are generally given their ordinary and customary meaning, as would be
understood by a person of ordinary skill in the art, at the time of the
invention and in the context of the entire patent disclosure. Phillips, 415
F.3d at 1312–13. “In determining the meaning of the disputed claim
limitation, we look principally to the intrinsic evidence of record, examining
the claim language itself, the written description, and the prosecution
history, if in evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek,
Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006) (citing Phillips, 415 F.3d at
1312–17).
Petitioner proposes constructions for the phrases (1) “key performance
indicator”/“KPI”; (2) “quality task”; and (3) “selecting from a plurality of
interaction recordings one or more selected interaction recordings for
evaluations, the one or more interactions recordings selected with relation to
said quality task.” Pet. 24–30. Patent Owner asserts that, of the terms
Petitioner proposes for construction, only “quality task” requires express
construction to resolve the patentability issues raised in this proceeding. PO
Resp. 10. Below, we address the construction of “quality task” and
determine that the other terms do not require express construction.
The parties’ proposed constructions of “quality task” are shown
below:
Petitioner’s proposal Patent Owner’s proposal
an associated collection of KPIs,
logic, actions, evaluation forms,
parameters, thresholds, criteria,
settings, configuration, context,
aspects or any other applicable data
or information
executable logic that performs a
quality evaluation of one or more
interaction recordings
Pet. 26; PO Resp. 11.
IPR2020-00245
Patent 8,553,872 B2
11
Petitioner’s proposed construction comes from the ’872 patent
specification, which states that “[a] quality task may be viewed as an
associated collection of KPIs, logic, actions, evaluation forms, parameters,
thresholds, criteria, settings, configuration, context, aspects or any other
applicable data or information.” Ex. 1001, 6:5–9; see Pet. 26–27.
Patent Owner argues that Petitioner’s “exceedingly broad construction
should be rejected because it is so at odds with the plain and ordinary
meaning of the term that it would entirely eliminate both concepts of
‘quality’ and ‘task.’” PO Resp. 10–11. Relying on the testimony of its
declarant, Mr. Zatkovich, Patent Owner proposes that the term means
“executable logic that performs a quality evaluation of one or more
interaction recordings.” Id. at 11 (citing Ex. 2005 ¶ 37). Patent Owner
asserts that the language of claim 1 “expressly demands that the ‘quality
task’ provide some indication or measure of quality.” Id. at 12–13. Patent
Owner further argues that, according to the ’872 patent, a fundamental part
of the concept of a quality task is providing a quality evaluation of one or
more interaction recordings. Id. at 13–14.
In reply, Petitioner asserts that Patent Owner ignores an explicit
definition of “quality task” in the specification. Reply 3–4 (citing Ex. 1001,
6:5–9). Petitioner also argues that the ’872 patent discloses that a human
being performs quality evaluations and there is no disclosure of executable
logic performing quality evaluations. Id. at 4.
In sur-reply, Patent Owner asserts that the cited passage from the
specification, which states how a quality task “may be viewed as,” is not a
definition. Sur-reply 5–10. Patent Owner also asserts that Figure 3’s
disclosure that “the quality task will have more evaluations performed if
IPR2020-00245
Patent 8,553,872 B2
12
other q-tasks do not have enough interactions to evaluate” is evidence that
the specification discloses that executable logic can perform quality
evaluations. Id. at 11–13.
We agree with Patent Owner that the statement in the specification on
which Petitioner relies for its construction is not definitional, because it
states how the quality task “may be viewed” rather than how the task is
necessarily viewed. See Ex. 1001, 6:5–9. Also, because the passage from
the specification is a broad description of what the quality plan may
encompass, we do not find Petitioner’s proposal helpful in delineating the
scope of “quality task” in the context of the patentability issues raised in this
proceeding. However, we do acknowledge that the ’872 patent describes a
“quality task” quite broadly, and provides options for what a quality task
may encompass. As explained below, we are not persuaded that we should
adopt Patent Owner’s construction because the specification does not clearly
describe the quality task itself as performing a quality evaluation for one or
more interaction recordings. Rather, the patent describes a quality task as
facilitating a person such as a manager to perform the evaluation.
Figures 2A–2E of the ’872 patent illustrate examples of computer
screens used to define a quality task. Ex. 1001, 6:13–14. Figures 2A and 2B
show that defining a quality task includes defining “various aspects of a
quality task’s logic.” Id. at Figs. 2A, 2B, 6:26–30. Figures 2A and 2D
illustrate that “an evaluation form may be associated with a quality task.”
Id. at Figs. 2A, 2D, 8:10–28. According to the ’872 patent, the “associated
evaluation form may be provided to a quality manager who may use the
evaluation form to evaluate an interaction.” Id. at 8:11–13.
IPR2020-00245
Patent 8,553,872 B2
13
The ’872 patent also describes configuring a “quality plan,” which
“may be associated with one or more quality tasks, KPIs, agents or agents
groups, quality managers, indications etc.” Id. at 9:18–21. Patent Owner
asserts that Figure 3—which “may be used to configure a quality plan” (id.
at 9:35–36)—illustrates why a “quality task” (as opposed to a person) can
perform an evaluation. PO Resp. 14–15; Sur-reply 11–13. The bottom
portion of Figure 3 is shown below.

Block 320 of Figure 3, above, illustrates that “[a]ny number of quality
tasks described herein may be associated with a quality plan.” Ex. 1001,
10:5–6. The ’872 patent states that, “[a]s shown by 324, a user may
configure a quality task to compensate for other quality tasks by checking
the appropriate check box.” Id. at 10:21–23. For example, according to the
’872 patent, “by checking the check box of the ‘services’ quality task[,] a
IPR2020-00245
Patent 8,553,872 B2
14
user may cause the ‘services’ quality task to select more interactions for
evaluation than the allocated 80% in case other quality tasks . . . fail to select
their share.” Id. at 10:23–27. The explanation bubble in Figure 3
originating from the top box in the “compensation” column discloses that
checking that box “indicates that this [quality task] will have more
evaluations performed if other [quality tasks] do not have enough
interactions to evaluate.” Id. at Fig. 3 (emphasis added). Patent Owner
relies on this description in Figure 3 as disclosing that the quality task itself
performs the evaluation. Sur-reply 11–13. We are not persuaded.
The description in the patent accompanying Figure 3 explains that the
compensation box is used to indicate that the corresponding quality task is
used to “select more interactions for evaluation.” Ex. 1001, 10:23–27. The
patent does not say that the quality task performs the evaluation. Also, the
explanation bubble in the figure uses the passive voice of “have more
evaluations performed” and does not definitively say that the quality task—
as opposed to a manager or supervisor—is the entity performing the
evaluation. See id. at Fig. 3. Moreover, the description accompanying
Figure 3 refers to the quality tasks “described herein.” Id. at 10:5–6. The
’872 patent consistently and repeatedly describes evaluations as being
performed by a person such as a quality manager and does not describe
executable logic performing an evaluation. See id. at 9:46–49, 9:55–56,
10:37–40, 11:43–49. As Petitioner argues, the quality task facilitates the
evaluation but does not perform the evaluation. See Tr. 7:25–8:8, 11:16–22.
In light of the foregoing, we agree with Patent Owner that the ’872
patent describes a quality task as “executable logic” but do not agree that the
patent describes, let alone limits, a quality task as executable logic that
IPR2020-00245
Patent 8,553,872 B2
15
performs a quality evaluation. We also do not find it necessary to adopt the
last portion of Patent Owner’s construction—“of one or more interaction
recordings”—because the claim later recites limitations directed to
interaction recordings and the evaluation. Thus, we modify Patent Owner’s
proposal and construe “quality task” as “executable logic that facilitates a
quality evaluation.”
We determine that no other claim terms require express construction
in order to address the patentability issues presented in this proceeding.
D. Asserted Obviousness Over Margulies I
(Incorporating Margulies II and Ezerzer) and Wentink
Petitioner contends that claims 1, 2, and 4–6 of the ’872 patent are
unpatentable under 35 U.S.C. § 103 as obvious over Margulies I
(incorporating Margulies II and Ezerzer) and Wentink. Pet. 6, 31–66.
Relying in part on the testimony of Mr. Occhiogrosso, Petitioner explains
how the references allegedly teach or suggest the claim limitations and
provides reasoning for combining the teachings of the references. Id. at 31–
66.
1. Summary of Margulies I
Margulies I is a U.S. patent titled “System and Method for Routing
Workflow Items Based on Workflow Templates in a Call Center.”
Ex. 1002, [54]. Margulies I discloses creating workflow templates for call
centers and routing workflow items in response to key performance indicator
(KPI) triggers. Id. at 1:22–27, 5:54–63, 6:21–28. Margulies I discloses that
“each workflow item template can be used to link to KPI-specific triggers,
such as . . . triggers for supervisor intervention.” Id. at 12:46–49.
IPR2020-00245
Patent 8,553,872 B2
16
Margulies I also discloses software that allows supervisors to monitor
contact center agents and to score agent transactions. Id. at 8:6–11. For
example, Margulies I discloses that supervisors can score agent performance
based on “the efficient handling of workflow items.” Id. at 19:7–10. A
workflow item may be a phone call. Id. at 1:29–33. According to Margulies
I, a supervisor can “select a specific workflow item” and “answer questions
dealing with scoring and weighting the KPIs in question for that agent.” Id.
at 19:19–23. Specifically, as illustrated in Figure 15, Margulies I discloses
that the supervisor selects a specific workflow item (step 1518), the KPI
template is loaded (step 1520), and “the workflow item is displayed/played
for the supervisor” (step 1522). Id. at 19:30–41.
Margulies I further discloses that supervisors can score agent
transactions using templates described in Margulies II (id. at 8:11–16),
which Margulies I incorporates in its entirety by reference (id. at 1:13–16).
2. Summary of Margulies II
Margulies II is a U.S. patent titled “Dynamic Customer Satisfaction
Routing.” Ex. 1003, [54]. Margulies II discloses that “[s]upervisors or third
parties (e.g., a compliance officer) can score agent performance and/or
customer interaction” based on templates. Ex. 1003, 12:4–6. As illustrated
in Figure 13 (which is similar to Figure 15 of Margulies I), Margulies II
discloses that a supervisor can select a specific interaction (step 1318) and a
KPI template is loaded (step 1320). Id. at 12:27–33. According to
Margulies II, “[o]nce the specific interaction is selected, a KPI Template as
well as one or more . . . scripts are displayed for Supervisor input.” Id. at
12:34–36. Margulies II also discloses that a KPI metric and a score for the
IPR2020-00245
Patent 8,553,872 B2
17
KPI metric “are available from a drop down list for the supervisor to select.”
Id. at 12:36–38.
Margulies II further discloses that “[w]hen the supervisor completes
the scoring session, the scores are stored in a database (step 1346) and the
supervisor is then queried on whether a specific action is required (step
1348).” Id. at 12:45–48. Margulies II also discloses “routing subsequent
call center actions based on the stored score.” Id. at 3:22–25; see also id. at
18:23–25 (disclosing “dynamically rout[ing] subsequent interactions based
on the historical performance of any agent”).
3. Summary of Ezerzer
Ezerzer is a U.S. patent titled “Call Center Administration Manager.”
Ex. 1004, [54]. Margulies I incorporates Ezerzer by reference in its entirety.
Ex. 1002, 2:6–12. Ezerzer describes an administration manager for
configuring a call center and a call center’s resources. Ex. 1004, 8:29–32.
Ezerzer illustrates interactive screens of the administration manager as they
appear in a web browser (Internet Explorer). Id. at 9:65–10:2; Figs. 2–96.
4. Summary of Wentink
Wentink is a U.S. patent application publication titled “System and
Method for Scoring Recorded Interactions.” Ex. 1005, [54]. Wentink
explains as background that systems for facilitating supervision of contact
center agents “often require additional personnel and distract contact center
employees from their primary task of speaking with customers.” Id. ¶ 4.
Wentink discloses a system for “automatically facilitating the process of
assigning and delivering recorded communications to supervisors for scoring
within a contact center.” Id. ¶ 1.
IPR2020-00245
Patent 8,553,872 B2
18
Specifically, Wentink discloses a system to “automatically distribute
selected communication recordings to a workgroup of scoring users, receive
and store the scores assigned by the scoring users, and generate reports
based upon scoring progress, status, and workload in addition to agent
performance.” Id. ¶ 24. Wentink discloses that “a set of business rules
defin[e] which communication recordings should be scored.” Id. ¶ 25. The
business rules are used “to select a subset of communication recordings from
a continually growing/changing collection.” Id. According to Wentink, the
business rules “are defined using a software implemented wizard allowing a
contact center manager or other supervisor to quickly define what portion
and/or type of recordings should be scored and other associated attributes.”
Id.
Wentink discloses “match[ing] the attributes of the recording to those
of a subset of scoring users,” thereby “increasing the accuracy of scoring by
assigning recording to users having the requisite skills to analyze the
communication.” Id. ¶ 5. Wentink also discloses “distribut[ing] recordings
to the selected scoring users based upon availability or work load.” Id. ¶ 6.
Wentink further describes presenting a scoring user with a scoring
form and an audio file of the communication recording to be scored. Id.
¶ 26. Figure 3 of Wentink, below, illustrates an embodiment of the
electronic scoring form. Id. ¶ 26.
IPR2020-00245
Patent 8,553,872 B2
19

As illustrated in Figure 3 above, scoring form 300 is divided into
several components, such as Product Knowledge tab 302, Customer Service
tab 304, and Sales Aptitude tab 312. Id. ¶ 27. Wentink discloses that “the
scoring user may interface with the scoring form 300 to assign scores to
various criteria such as . . . the agent’s understanding of the product, the
agent’s customer interaction skills, and/or the agent’s overall performance.”
Id. Wentink discloses that “the scoring user is able to listen to the recorded
communication using integrated playback controls 350.” Id. ¶ 28.
According to Wentink, once the scoring form is completed, “the scoring user
selects the save option 340.” Id.
IPR2020-00245
Patent 8,553,872 B2
20
5. Analysis
a. Independent claim 1
Petitioner generally relies on Margulies I or Margulies II for teaching
defining and activating a quality task, on the combination of Margulies I and
Wentink for teaching selecting interaction recordings with relation to the
quality task, and on either Margulies II or the combination of Margulies II
and Wentink for teaching displaying a graphical representation of the
recordings and an evaluation form. Pet. 32–55.
i. “A computer-implemented method for
performing a quality evaluation”
Petitioner persuasively shows that Margulies I, which incorporates
Margulies II, discloses the preamble. Pet. 32–33 (citing Ex. 1002, Fig. 1,
8:6–9; Ex. 1003, Fig. 13, 12:18–41; Ex. 1006 ¶¶ 74–77). Margulies I
discloses a computer-implemented workflow that allows a supervisor to
perform a quality evaluation. Ex. 1002, 8:6–9 (“The Internet/User Zone 10
further implements access software that allows Supervisors to provide
monitoring and coaching of both contact center agents and knowledge
workers.”), 8:9–16 (disclosing that supervisors can score agent transactions
and other workflow items in real time or off-line using templates as
described in Margulies II); Fig. 1 (illustrating Internet/User Zone 10); Ex.
1006 ¶ 75 (citing Ex. 1002, 8:11–16). Margulies II also discloses, as
illustrated in Figure 13, a computer-implemented process in which a
supervisor can score an interaction. Ex. 1003, Fig. 13, 12:18–41.
ii. “accepting a definition of a quality task associated with a
predefined evaluation form, wherein the definition of the
quality task is based on quality task parameters
selected by a user on a graphical user interface”
IPR2020-00245
Patent 8,553,872 B2
21
Petitioner persuasively shows that Margulies I discloses the
“accepting a definition of a quality task” limitation. Pet. 33–41 (citing Ex.
1002, Figs. 9A–9C, 8:48–49, 12:18–67, 13:41–46, 13:52–54, 14:4–9, 14:35–
58, 15:11–14, claim 1; Ex. 1004, Fig. 16, 9:65–10:9; Ex. 1006 ¶¶ 78–91).
Petitioner persuasively shows that Margulies I (incorporating Margulies II
and Ezerzer) discloses accepting a definition of a workflow template (a
quality task) associated with a key performance indicator (KPI) template (a
predefined evaluation form), and that the definition is based on parameters
selected by a user on a graphical user interface.
Margulies I’s Figures 9A through 9C illustrate the steps for defining a
workflow template. Ex. 1002, 9:3–4, 13:38–41. Margulies I discloses that
the system accepts a definition of the workflow template by way of an
administrator user selecting parameters on an administrator manager
interface. Id. at 13:41–46 (“An administrator will use the Administration
Manager interface . . . to define Workflow Templates.”); see also Ex. 1004,
9:65–10:9, Figs. 2–96 (Ezerzer disclosing screenshots of the graphical user
interface for the administration manager). The parameters may relate to
quality in that Margulies discloses that workflow templates “provide the
means to create, define and store . . . ‘trigger points’ for each workflow
item” and that each template “can be used to link to KPI-specific triggers,
such as routing triggers or triggers for supervisor intervention.” Ex. 1002,
12:42–49. Margulies I further discloses that “[s]kills, workgroup
requirements such as service levels, customer priorities, and workforce
preferences may also be used as triggers.” Id. at 13:21–23. According to
Margulies I, “any piece of data or workflow event that can be characterized
and parameterized in the database can essentially be used as a trigger.” Id.
IPR2020-00245
Patent 8,553,872 B2
22
at 13:23–25. Margulies I further discloses that workflow templates include
scripts and routing rules. Id. at claim 1; Ex. 1006 ¶ 81. Margulies I thus
discloses that its workflow template is executable logic that facilitates a
quality evaluation.
Margulies I also discloses that the workflow template may be
associated with a KPI template (a predefined evaluation form). For
example, Figures 10–13 “illustrate processes for linking Workflow
Templates and KPI Templates to specific media and/or project types.” Id. at
15:11–14. Margulies II provides further details as to how a call center
supervisor uses a KPI template as an evaluation form to score a call center
agent or a caller interaction. Ex. 1003, Fig. 13, 12:18–44.
Relying on its proposed construction of “quality task,” Patent Owner
argues that Margulies I’s workflow template is not a quality task. PO Resp.
28–32. Patent Owner asserts that the workflow template is “for defining a
workflow in a call center, not for performing a quality evaluation.” Id. at 31;
see also id. at 30–31 (arguing that workflow templates are “used as
instructions for generating the user interfaces that guide an agent through an
interaction and/or route workflow items once received in the contact center”
and are not executable to “perform a quality evaluation of one or more
interaction recordings”). All of Patent Owner’s arguments regarding this
claim limitation are based on a purported distinction of the quality task
performing a quality evaluation. See id. at 28–32; Sur-reply 15–16.
Because we do not adopt the portion of Patent Owner’s construction
requiring that the quality task “perform” a quality evaluation (see supra
Section II.C.), Patent Owner’s arguments distinguishing Margulies I’s
workflow template from the claimed “quality task” are not persuasive.
IPR2020-00245
Patent 8,553,872 B2
23
iii. “activating the quality task upon detecting breaching of a
predefined key performance indicator (KPI)”
Petitioner persuasively shows that Margulies I discloses the
“activating the quality task” limitation. Pet. 42–44 (citing Ex. 1002, 5:54–
63, 6:21–26, 9:35–40, 13:6–7, 13:23–25, 15:52–55; Ex. 1006 ¶¶ 92–96).
Margulies I discloses activating the workflow template (quality task) upon
detecting breaching of a predefined KPI. Ex. 1002, 5:54–63, 6:21–26, 9:35–
40, 13:4–7, 13:21–25. Specifically, Margulies I discloses “executing a
workflow template associated with a workflow item and at least one trigger
point” and “routing the workflow item in response to activation of the
trigger point.” Ex. 1002, 5:54–58. Margulies I also discloses that “[t]he
trigger point may be a key performance indicator trigger.” Id. at 5:61–63;
see also id. at 6:21–26 (disclosing that a workflow template is used to link a
customer priority to “key performance indicator (KPI) specific triggers”).
Margulies I explains that “[t]riggers are actions based on pre-set parameters
that occur as a result of certain events or thresholds being accomplished”
and that “[t]riggers may act as ‘entry points’ or ‘next step’ instructions for
workflow.” Id. at 13:4–7. Margulies states that “service levels [and]
customer priorities” may be used as triggers. Id. at 13:21–23.
Patent Owner argues that Margulies I does not teach detecting
breaching of a KPI. PO Resp. 33–35. Patent Owner asserts that there is no
indication in Margulies I that a KPI-specific “trigger” is a detected “breach”
of a KPI. Id. at 34–35. In reply, Petitioner points to the disclosure in
Margulies II (incorporated in Margulies I by reference) that “thresholds of
measured KPIs” are used to take action on calls that breach the threshold.
Reply 19–20 (citing Ex. 1003, 3:34–38, 10:53–55). Petitioner also points to
IPR2020-00245
Patent 8,553,872 B2
24
the disclosure in Margulies I that “[t]riggers are actions based on pre-set
parameters that occur as a result of certain events or thresholds being
accomplished.” Id. at 20 (quoting Ex. 1002, 13:4–7). Petitioner gives an
example of how there is no functional difference between breaching and
triggering: “[I]f a user wishes to identify calls that lasted longer than 30
seconds, they can either set the KPI trigger to 31 seconds or set the KPI
threshold to 30 seconds[,] thereby initiating a breach at 31 seconds.” Id.
(emphasis omitted).
We are not persuaded by Patent Owner’s arguments attempting to
distinguish a trigger from a breach. Margulies I (including Margulies II)
discloses that a trigger point may be a KPI trigger and that a trigger may be
based on a threshold. Ex. 1002, 5:61–63, 13:4–7; Ex. 1003, 3:34–38, 10:53–
55. We agree with Petitioner that disclosing acting on a KPI trigger based
on a threshold discloses detecting a breach of a KPI, as illustrated by
Petitioner’s example of a 30-second threshold. See Reply 20 (citing Ex.
1016 ¶ 27).
Patent Owner also argues that “once a KPI trigger occurs in Margulies
I, it is not used to identify the existence of a problem or activate the selection
of interactions for further evaluation.” Sur-reply 19 (emphasis omitted).
Rather, according to Patent Owner, the KPI trigger “is used for purposes
related to directing interactions between a customer and an agent.” Id. We
disagree with Patent Owner. Patent Owner focuses too narrowly on the
aspect of Margulies I regarding routing of calls. See id. However,
Margulies I also discloses that “each workflow item template can be used to
link to KPI-specific triggers, such as routing triggers or triggers for
supervisor intervention.” Ex. 1002, 12:46–49; see also id. at 6:21–28
IPR2020-00245
Patent 8,553,872 B2
25
(disclosing supervisors using workflow templates). Petitioner persuasively
shows that Margulies I discloses activating the workflow template (quality
task) upon detecting breaching of a predefined KPI.
iv. “selecting from a plurality of interaction recordings one or more
selected interaction recordings for evaluations, the one or more
interactions recordings selected with relation to said quality task”
Petitioner persuasively shows that the combination of Margulies I and
Wentink teaches the “selecting” limitation. Pet. 44–49 (citing Ex. 1002,
1:29–44, 8:9–16, 19:7–23, 19:30–41; Ex. 1003, 12:4–6, 12:10–13, 12:20–
44; Ex. 1005 ¶¶ 4, 5, 24, 25; Ex. 1006 ¶¶ 97–108). Margulies I (including
Margulies II) discloses a supervisor manually selecting interaction
recordings to evaluate in conjunction with a workflow template (a “quality
task”). Figure 15 illustrates the supervisor view of a workflow document in
which “[s]upervisors can score agent and knowledge worker performance
(KPIs) based on the efficient handling of workflow items based on the
Workflow Templates.” Ex. 1002, 19:5–10. Margulies I discloses that a
supervisor “select[s] specific workflow items based on a plurality of search
criteria including company, customer, agent, knowledge worker and specific
workflow item.” Id. at 19:15–19. As illustrated in Figure 15, at steps 1504
and 1506, a supervisor searches for an interaction to score based on worker
or workflow item. Id. at Fig. 15, 19:28–30. After choosing a date range and
specific workflow item, a KPI template is loaded. Id. at Fig. 15 (steps 1516,
1518, and 1520), 19:34–37. Next, the workflow item is found from a
database and “displayed/played for the supervisor to see or hear or both.”
Id. at Fig. 15 (steps 1522 and 1524), 19:38–41. Margulies II similarly
discloses a supervisor “select[ing] specific interactions based on a plurality
IPR2020-00245
Patent 8,553,872 B2
26
of search criteria including company, customer, agent and specific
interaction.” Ex. 1003, Fig. 13, 12:10–13, 12:18–33.
Wentink discloses using a set of business rules to automatically select
a subset of communication recordings for evaluation. Specifically, Wentink
discloses an improved system for distributing call recordings for scoring by,
for example, matching the attributes of the recording to those of the scoring
users. Ex. 1005 ¶¶ 4, 5. Figure 2 illustrates the process for configuring and
operating the system to “automatically distribute selected communication
recordings to a workgroup of scoring users.” Id. ¶ 24. As illustrated in
Figure 2, the system receives “a set of business rules defining which
communication recordings should be scored (stage 202).” Id. at Fig. 2, ¶ 25.
According to Wentink, “these business rules are utilized by Recording
Server 26 [shown in Figure 1] to select a subset of communication
recordings from a continually growing/changing collection it maintains.” Id.
¶ 25. Wentink discloses that “the rules are defined using a software
implemented wizard allowing a contact center manager or other supervisor
to quickly define what portion and/or type of recordings should be scored
and other associated attributes.” Id.
Petitioner provides persuasive reasoning with rational underpinning
for combining the teachings of Margulies I (incorporating Margulies II) and
Wentink. Pet. 44, 47, 48–49 (citing Ex. 1006 ¶¶ 97, 106–108). Petitioner
persuasively shows that it would have been obvious to a person of ordinary
skill in the art to substitute the manual selection of interaction recordings
disclosed in Margulies I and Margulies II “with a system that automatically
and non-randomly selects the interaction recordings for evaluation, using
certain predetermined criteria, as disclosed in Wentink.” Pet. 44 (citing Ex.
IPR2020-00245
Patent 8,553,872 B2
27
1006 ¶ 97) (emphasis omitted). An ordinarily skilled artisan would have
made this substitution (replacing a manual selection process with an
automated, business rules-driven process) to cure the inefficiency disclosed
in Wentink that “quality management systems in the prior art ‘often require
additional personnel and distract contact center employees from their
primary task of speaking with customers.’” Ex. 1005 ¶ 4; Ex. 1006 ¶ 108.
Moreover, the substitution would have no unexpected results and would
have required nothing more than a straightforward software modification of
replacing the manual selection code disclosed in Margulies I and II with
automated rules to determine which interaction recordings to select based on
parameters defined by a user, as disclosed in Wentink. Ex. 1006 ¶¶ 106–
108.
Patent Owner argues that “using the Wentink selection method in
place of the Margulies I and II selection method does not result in” the
claimed system because “Petitioner proposes replacing the very thing in
Margulies I and II that it relies on for the claim requirement of selection
‘with relation to said quality task.’” PO Resp. 38–39 (emphases omitted).
In other words, Patent Owner asserts that Petitioner’s combination—which
Patent Owner asserts is “wholesale substitution” of the selection regime in
Margulies I and II with the selection regime in Wentink—removes using the
Margulies I workflow template to select interaction recordings. Id. at 38
(emphasis omitted). Patent Owner adds that Petitioner provides no reason
why an ordinarily skilled artisan would have selected to add the automated
selection of Wentink based on business rules and also in relation to a
workflow template. Id. at 39.
IPR2020-00245
Patent 8,553,872 B2
28
Petitioner responds that Patent Owner ignores the assertion in the
Petition that it would have been obvious to replace the manual selection
process in Margulies I and II with the automatic and non-random selection
process disclosed in Wentink. Reply 21–22 (citing Pet. 48; Ex. 1006 ¶ 106).
Petitioner adds that “the concept of replacing a time-consuming manual
selection process with a faster and more efficient automated process” was
well known. Id. at 22 (citing Ex. 1016 ¶ 28).
We are not persuaded by Patent Owner’s arguments regarding
Petitioner’s combination. Petitioner persuasively explains that the
modification of Margulies I and II is to the code for manual selection within
the workflow template code with automated rules based on parameters
defined by a user and the known benefits of replacing a manual process with
an automated process. Pet. 44, 47–49; Ex. 1006 ¶¶ 106–108; Ex. 1005 ¶ 4;
Ex. 1016 ¶ 28.
v. “associating the selected interaction recordings
with the predefined evaluation form”
Petitioner persuasively shows that Margulies I (including Margulies
II) discloses the “associating” limitation. Pet. 49–51 (citing Ex. 1002, Fig.
15, 1:29–33, 19:36–41; Ex. 1003, Fig. 13, 12:27–41; Ex. 1006 ¶¶ 109–112).
Margulies I discloses that when a supervisor selects a workflow item (an
interaction recording), a KPI template (predefined evaluation form) is loaded
in association with the interaction recording. Specifically, Margulies I
discloses that workflow items may be “phone calls, e-mails, internet-based
chats, voice messages, and other real-time and non-real time media
interactions.” Ex. 1002, 1:29–33; see also id. at Fig. 15 (step 1524), 1:40–
41 (disclosing finding the interaction from the database). Margulies I also
IPR2020-00245
Patent 8,553,872 B2
29
discloses that “[s]electing the specific workflow item includes loading the
KPI template (step 1520)” and that “[o]nce the workflow item is selected,
the workflow item is displayed/played for the supervisor to see or hear or
both (step 1522).” Id. at Fig. 15, 19:36–41; see also id. at 8:11–16
(disclosing that supervisors can score workflow items using templates as
described in Margulies II).
Margulies II likewise discloses loading a KPI template (a predefined
evaluation form) when an interaction recording is selected and using the KPI
template to evaluate the interaction recording. Ex. 1003, Fig. 13 (steps 1318
through 1334), 12:27–41. Margulies II discloses “[o]nce the specific
interaction is selected, a KPI template as well as one or more of the CGI,
JSP, and HTML scripts are displayed for Supervisor input (step 1326).” Id.
at 12:34–63. Margulies further discloses how the supervisor uses the KPI
template to score an interaction. Id. at Fig. 13, 12:34–44.
Margulies I (including Margulies II) thus discloses associating the
selected interaction recordings (workflow items) with the predefined
evaluation form (KPI template). Patent Owner does not raise any arguments
specific to this claim limitation. See generally PO Resp.; Sur-reply.
vi. “displaying a graphical representation of the one or more interaction
recordings and the evaluation form, wherein the evaluation form is used
to evaluate the one or more interaction recordings”
Petitioner persuasively shows that Margulies I (incorporating
Margulies II) alone or in combination with Wentink teaches the “displaying”
limitation. Pet. 51–54 (citing Ex. 1003, 12:29–38; Ex. 1005, Fig. 3, ¶¶ 26–
28; Ex. 1006 ¶¶ 113–116). Margulies II discloses that once a specific
interaction is selected, “the supervisor can display or play the visual or audio
interaction.” Ex. 1003, 12:31–33; see also id. at Fig. 13 (step 1322).
IPR2020-00245
Patent 8,553,872 B2
30
Margulies II also discloses “[o]nce the specific interaction is selected, a KPI
template as well as one or more of the CGI, JSP, and HTML scripts are
displayed for Supervisor input (step 1326).” Id. at 12:34–36; Fig. 13 (step
1326). Margulies II explains that “a KPI metric (step 1328) and Score for
KPI Metric (step 1330) are available from a drop down list for the supervisor
to select.” Id. at 12:36–38; Fig. 13. “The supervisor is then queried (step
1322) to score additional KPI metrics (step 1336) and KPI scores (step
1338) or complete the scoring (step 1334).” Id. at 12:39–41; Fig. 13.
Margulies (incorporating Margulies II) alone thus discloses this limitation.
Wentink also discloses this limitation, as illustrated in Figure 3 below.

Figure 3, above, illustrates a screen shot of graphical user interface in
which controls for playback of a recorded communication (350) are
displayed in the same window as a scoring form (300). Ex. 1005, Fig. 3,
IPR2020-00245
Patent 8,553,872 B2
31
¶¶ 12, 26, 28. Wentink discloses that, “[p]referably, the communication
recording to be scored is presented to the scoring user simultaneously with
the scoring form.” Id. ¶ 26.
Petitioner persuasively shows that a person of ordinary skill in the art
would have been motivated to substitute the scoring interface of Margulies I
(incorporating Margulies II) with the scoring interface of Wentink to allow
the interaction recording to be played in a window that overlays the scoring
form, making the scoring user-friendly and efficient. Pet. 53–54 (citing Ex.
1006 ¶ 116).
Patent Owner does not raise any arguments specific to this claim
limitation. See generally PO Resp.; Sur-reply.
vii. “receiving evaluation results of the one or more
selected interaction recordings”
Petitioner persuasively shows that Margulies I (incorporating
Margulies II) discloses the “receiving” limitation in that Margulies II
discloses that, after the supervisor uses the KPI template to evaluate
interactions, the scores are stored in a database. Pet. 54 (citing Ex. 1003,
12:45–48; Ex. 1006 ¶ 117); Ex. 1003, Fig. 13, 12:45–48 (“When the
supervisor completes the scoring session, the scores are stored in a database
(step 1346) and the supervisor is then queried on whether a specific action is
required (step 1348).”). Patent Owner does not raise any arguments specific
to this claim limitation. See generally PO Resp.; Sur-reply.
viii. “performing at least one predefined action based on the results”
Petitioner persuasively shows that Margulies I (incorporating
Margulies II) discloses the “performing” limitation. Pet. 54–55 (citing Ex.
1003, 3:22–25, 18:17–25; Ex. 1006 ¶ 118). Margulies II discloses routing
IPR2020-00245
Patent 8,553,872 B2
32
subsequent call center interactions based on the evaluation results.
Ex. 1003, 3:22–25 (“The method may further comprise the steps of: storing
the score in a database, and routing subsequent call center interactions based
on the stored score.”), 18:18–25 (“It would be advantageous to correlate the
KPI scores resulting from both customer and supervisor input with specific
agents’ skills. Such skills-based data can be used to dynamically route
subsequent interactions based on the historical performance of any agent.”).
Patent Owner does not raise any arguments specific to this claim limitation.
See generally PO Resp.; Sur-reply.
ix. Conclusion regarding claim 1
Petitioner has shown by a preponderance of the evidence that claim 1
is unpatentable as obvious over Margulies I and Wentink.
b. Dependent claim 2
Claim 2 depends from claim 1 and adds “wherein selecting is based
on at least one of: an agent identification, an interaction duration, an
interaction result, an average holding time (AHT), an audio analysis result, a
customer satisfaction indicator, a time of the interaction, a metadata
associated with an interaction, a KPI and a quality supervisor.” As
explained above, Petitioner persuasively shows that the combination of
Margulies I (incorporating Margulies II) and Wentink teaches the subject
matter of claim 1. Petitioner also persuasively shows that the combination
of Margulies I (incorporating Margulies II) and Wentink teaches the
limitation added by claim 2. Pet. 55–57 (citing Ex. 1003, 12:4–13, 12:20–
29; Ex. 1005 ¶¶ 25, 35, claim 2; Ex. 1006 ¶¶ 119–121).
Specifically, Margulies II discloses manually selecting interactions
based on an agent identification or time of the interaction (date range). Ex.
IPR2020-00245
Patent 8,553,872 B2
33
1003, Fig. 13, 12:10–13 (“[T]he Supervisor uses the Supervision Manager to
select specific interactions based on a plurality of search criteria including
company, customer, agent and specific interaction.”), 12:20–27 (“[T]he
supervisor can search (step 1304) for an interaction to score. The supervisor
is then queried (step 1306) to choose an interaction or agent to score . . . .
The scoring process then proceeds to the selection of a date range (step
1316) and specific interaction (step 1318). If an agent is selected, the
supervisor chooses the appropriate Agent to score (step 1308) and Company
(step 1312).”).
Moreover, as discussed above in connection with the “selecting”
limitation of claim 1, it would have been obvious to modify the manual
selection process of Margulies I (incorporating Margulies II) with an
automated selection process as disclosed in Wentink. See supra Section
II.D.5.a.iv. Wentink discloses that the interactions to be scored may include
certain attributes such as agent. Ex. 1005 ¶ 35. Wentink also discloses
using a set of business rules to automatically select a subset of
communication recordings for evaluation. Id. at Fig. 2, ¶ 25. Petitioner
persuasively shows that a person of ordinary skill in the art would have been
motivated to automate the Margulies I and II selection process using the
teachings of Wentink by defining the business rules based on a specific
agent. Ex. 1005 ¶¶ 24, 25, claim 2; Ex. 1006 ¶ 121.
Patent Owner argues that “the plain and ordinary meaning of the term
‘at least one of’ followed by a list of items connected with the conjunctive
‘and’ is that at least one of each of the listed items is required.” PO Resp. 40
(citing SuperGuide Corp. v. DirectTV Enters., Inc., 358 F.3d 870, 886 (Fed.
Cir. 2004)). Patent Owner thus argues that Petitioner’s showing is deficient
IPR2020-00245
Patent 8,553,872 B2
34
because Petitioner has presented evidence as to only two of the listed
items—agent identification and interaction duration. PO Resp. 40–41.
Petitioner responds that the SuperGuide decision “was heavily
influenced by the specification, which recited that ‘[e]very disclosed
embodiment teaches that the user must choose a value for each designated
category.’” Reply 23 (citing SuperGuide, 358 F.3d at 887). Petitioner
explains that, here, the ’872 patent discloses that “any applicable criteria
may be used for selecting interactions for evaluation” and does not describe
selecting based on each of the criteria listed in claim 2. Id. at 23–24.
Petitioner adds that even if the list in claim 2 is conjunctive, the prior art
teaches each listed category. Id. at 25–27.
We agree with Petitioner that this case is distinguishable from
SuperGuide because there, the Federal Circuit concluded that “nothing in the
specification rebuts the presumption that the [patentee] intended the plain
and ordinary meaning” of the “at least one of” language. See SuperGuide,
358 F.3d at 887. Here, claim 2 is directed to what criteria the selecting of
interactions is based on, and the ’872 patent specification discloses that any
of the criteria listed in the claim (as well as others) can be used for such
selection:
As described herein, any applicable criteria may be used for
selecting interactions for evaluation, e.g., a breaching of a KPI,
call type (for example, support, sales, per product, campaign, or
other types), predefined words or terms used during an
interaction (that may be detected by word spotting techniques),
duration of a call, screen events, e.g., events associated with a
screen used by the relevant agent, seniority of the agent
associated with an interaction, historical performance of the
agent, a quota related to the agent or the quality manager etc.
IPR2020-00245
Patent 8,553,872 B2
35
Ex. 1001, 11:17–26 (emphases added). Patent Owner does not identify any
description in the specification requiring use of each of the criteria listed in
claim 2. See PO Resp. 40–41; see generally Sur-reply.
For the above reasons, Petitioner shows by a preponderance of the
evidence that claim 2 is unpatentable as obvious over Margulies I and
Wentink.
c. Dependent claim 4
Claim 4 depends from claim 1 and adds “wherein the quality task
defines at least one call type, at least one KPI and at least one agent.” As
explained above, Petitioner persuasively shows that the combination of
Margulies I and Wentink teaches the subject matter of claim 1. Petitioner
also persuasively shows that the combination of Margulies I and Wentink
teaches the limitation added by claim 4. Pet. 57–60 (citing Ex. 1002, 1:29–
33, 5:33–39, 5:45–49, 5:61–63, 5:65–6:9; Ex. 1005 ¶¶ 4, 5, 8, 33; Ex. 1006
¶¶ 122–129).
Margulies I discloses “defining one or more routing rules for [a]
workflow item, which may be based on preference as identified by a
supervisor.” Ex. 1002, 5:45–49. Margulies I also discloses routing of a
workflow item based on skill-oriented triggers and work item preferences.
Id. at 6:1–9. Also, in solving the problem of “a supervisor skilled in sales
[being] totally unqualified to score a dispute resolution communication,”
Wentink discloses matching the attributes of a recording with those of a
scoring user and “assigning recordings to users having the requisite skills to
analyze the communication.” Ex. 1005 ¶¶ 4, 5. According to Wentink, “the
skills may include numerous areas of expertise, such as sales, tech support,
dispute resolution, customer support, languages spoken, or the like.” Id.
IPR2020-00245
Patent 8,553,872 B2
36
¶ 33. Petitioner provides persuasive, uncontroverted testimony that, in light
of these disclosures, it would have been obvious to modify the Margulies I’s
workflow template (quality task) to route interaction recordings to
supervisor scorers based on the type of call (e.g., sales, dispute resolution, or
customer support) that matches the supervisor’s attributes. Ex. 1006 ¶¶ 123,
125.
Moreover, Margulies I discloses that workflow template (quality task)
defines at least one KPI and at least one agent to whom a workflow item
may be routed. Ex. 1002, 5:33–39 (disclosing that “the workflow template
defines one or more trigger points”), 5:61–63 (disclosing that “[t]he trigger
point may be a key performance indicator trigger”); 5:65–6:9. Also,
Wentink discloses that experienced agents may act as scoring supervisors to
evaluate caller interactions during downtime. Ex. 1005 ¶ 4 (“Additionally,
communication recording[s] may be routed to supervisors or experienced
agents during downtime in order to increase productivity and efficiency.”).
Petitioner persuasively shows that it would have been obvious to modify
Margulies I’s workflow template used for supervisor review of workflow
items to include additional routing of workflow items to a specifically
defined agent. Pet. 60 (citing Ex. 1005 ¶ 4; Ex. 1006 ¶ 129). Moreover, as
discussed above in connection with the “selecting” limitation of claim 1, it
would have been obvious to modify the manual selection process of
Margulies I (incorporating Margulies II) with an automated selection process
as disclosed in Wentink. See supra Section II.D.5.a.iv.
Patent Owner does not raise any arguments specific to claim 4. See
generally PO Resp.; Sur-reply.
IPR2020-00245
Patent 8,553,872 B2
37
For the reasons explained above, Petitioner shows by a preponderance
of the evidence that claim 4 is unpatentable as obvious over Margulies I and
Wentink.
d. Dependent claims 5 and 6
Claim 5 depends from claim 1 and adds “wherein the one or more
selected interaction recordings are selected according to a predefined quota,
said quota related to a number of evaluations to be performed by a quality
supervisor during a predefined period of time.” Claim 6 depends from claim
5 and adds “wherein said quota defines a maximum number of interaction
recordings related to a specific agent in a call center.”
Petitioner asserts that Wentink discloses the limitation added by claim
5. Pet. 61–63. Specifically, Petitioner asserts that Wentink discloses
distributing interaction recordings according to a scorer’s “forecast
workload” and that a person of ordinary skill in the art “would understand
from this disclosure that the scoring user’s ‘forecast workload’ must refer to
a predefined number of evaluations to be performed by the scoring user
during a preset time.” Pet. 61–62 (emphasis added). Petitioner explains that
“the only way to determine whether or not to send an evaluation to a scoring
user for scoring based on workload is if the system takes into account the
maximum number of evaluations the scoring user can perform in a set period
of time, and whether that maximum has been reached for the present time
period.” Id. at 62 (citing Ex. 1006 ¶ 132) (emphasis added). Petitioner
further asserts that while Wentink’s disclosure concerns how call interaction
recordings are distributed, a person of ordinary skill in the art would have
found it obvious to modify Wentink’s business rules to select recordings
based on workload. Id. at 63.
IPR2020-00245
Patent 8,553,872 B2
38
In our Institution Decision, we concluded that Petitioner did not
sufficiently show or explain why a person of ordinary skill in the art would
have understood that Wentink’s “forecast workload” must refer to the quota
recited in claim 5—a predicate to Petitioner’s showing of obviousness as
framed in the Petition. Inst. Dec. 23. We gave as an example that Petitioner
does not sufficiently show or explain why an ordinarily skilled artisan would
have understood from Wentink’s teaching of distributing recordings based
on forecast workload that a maximum number of evaluations for a particular
time period must be taken into account. Id.
Patent Owner points to our preliminary findings, and argues that the
“forecast workload” disclosed in Wentink is not necessarily the claimed
quota. PO Resp. 42. According to Patent Owner, Wentink’s forecast
workload “could be an amount of work the supervisor expects to have to
perform in the future, having nothing to do with a number of evaluations to
be performed over a predefined period of time.” PO Resp. 42.
In Reply, Petitioner cites to a dictionary entry defining “workload” as
“the amount of work assigned to or expected from a worker in a specified
time period.” Reply 27–28 (citing Ex. 1018). Petitioner also argues that the
term “forecast” includes a time element and that a person of ordinary skill in
the art would have understood that, in the context of a call center, a
“forecast” inherently incorporates an element of time. Id. at 28. Petitioner
also asserts that if we find that Wentink does not expressly disclose selecting
interactions according to a predefined quota, it would have been obvious to
incorporate the forecast workload described in Wentink to the selection
process. Id. at 29.
IPR2020-00245
Patent 8,553,872 B2
39
Patent Owner responds that while forecasting a workload involves
identifying how much work probably will be completed in a time period,
setting a quota identifies how much work must be completed. Sur-reply 21–
22. Thus, according to Patent Owner, Wentink’s disclosure of a forecast
workload does not disclose the claimed quota. Patent Owner also argues
that Petitioner improperly relies on a new obviousness rationale and
supporting expert testimony for the first time in its Reply. Sur-reply 22–23.
We determine that Petitioner fails to establish the unpatentability of
claim 5 (and also claim 6, which depends from claim 5). In the Petition,
Petitioner asserts that “Wentink teaches that the interaction recordings are
distributed for scoring according to the scorer’s forecast workload
(‘predefined quota’) over a period of time scheduled specifically for scoring
(‘during the predefined period of time’).” Pet. 61. Petitioner asserts that a
person of ordinary skill in the art would have understood that “the scoring
user’s ‘forecast workload’ must refer to a predefined number of evaluations
to be performed by the scoring user during a present time.” Id. at 62
(emphasis added). We are not persuaded that Petitioner has made the
required showing.
Wentink does not expressly disclose distributing recordings according
to a predefined quota. Rather, Wentink discloses distributing the recordings
based on workload, including a forecast workload. See Ex. 1005 ¶¶ 6
(“[T]he system distributes recordings to the selected scoring users based
upon availability or work load.”), 31 (“[F]lag 406 may be replaced by the
user’s current or forecast workload or the schedule of the user, either
showing time scheduled for work or time scheduled specifically for
scoring.”), 36 (“[I]f a recording requires immediate scoring[,] then a user
IPR2020-00245
Patent 8,553,872 B2
40
who is currently available for scoring or who has a light work load must be
selected . . . .”). Distributing recordings according to a forecast workload
does not necessarily encompass the claimed quota, as Petitioner asserts.
Rather, we agree with Patent Owner that a forecast workload involves
identifying how much work may or probably will be completed while a
quota involves identifying how much work must be completed. See Sur-
reply 21–22. Claim 5 requires that quota be “related to a number of
evaluations to be performed . . . . during a predefined period of time.”
Petitioner’s assertions that Wentink’s disclosure must be read as disclosing
distributing recordings according to the claimed quota are unpersuasive.
For the foregoing reasons, Petitioner has not shown by a
preponderance of the evidence that claims 5 and 6 are unpatentable as
obvious over Margulies I and Wentink.
III. CONCLUSION6
The table below summarizes our conclusions as to the challenged
claims.

6 Should Patent Owner wish to pursue amendment of the challenged claims
in a reissue or reexamination proceeding subsequent to the issuance of this
Decision, we draw Patent Owner’s attention to the April 2019 Notice
Regarding Options for Amendments by Patent Owner Through Reissue or
Reexamination During a Pending AIA Trial Proceeding. See 84 Fed. Reg.
16,654 (Apr. 22, 2019). If Patent Owner chooses to file a reissue application
or a request for reexamination of the challenged patent, we remind Patent
Owner of its continuing obligation to notify the Board of any such related
matters in updated mandatory notices. See 37 C.F.R. § 42.8(a)(3), (b)(2).
IPR2020-00245
Patent 8,553,872 B2
41

IV. ORDER
Accordingly, it is
ORDERED that, based on a preponderance of the evidence, claims 1,
2, and 4 of U.S. Patent No. 8,553,872 B2 have been shown to be
unpatentable;
ORDERED that, based on a preponderance of the evidence, claims 5
and 6 of U.S. Patent No. 8,553,872 B2 have not been shown to be
unpatentable;
FURTHER ORDERED that that, because this is a final written
decision, parties to this proceeding seeking judicial review of our decision
must comply with the notice and service requirements of 37 C.F.R. § 90.2.
Claims 35 U.S.C. § Reference(s)/Basis
Claims
Shown
Unpatentable
Claims
Not shown
Unpatentable
1, 2, 4–6 103 Margulies I
(incorporating
Margulies II,
Ezerzer), Wentink
1, 2, 4 5, 6
Overall
Outcome
1, 2, 4 5, 6
IPR2020-00245
Patent 8,553,872 B2
42
FOR PETITIONER:
James M. Heintz
Michael Van Handel
DLA PIPER LLP
jim.heintz@dlapiper.com
michael.vanhandel@dlapiper.com

FOR PATENT OWNER:
Jeffrey A. Berkowitz
Gerson S. Panitch
Michael V. Young
Christopher C. Johns
Guang-Yu Zhu
Alexander M. Boyer
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
jeffrey.berkowitz@finnegan.com
gerson.panitch@finnegan.com
michael.young@finnegan.com
christopher.johns@finnegan.com
guang-yu.zhu@finnegan.com
alexander.boyer@finnegan.com