Shmuel Shaffer et al.

Patent Trials and Appeals Board

Jan 21, 2020

13922528 - (D) (P.T.A.B. Jan. 21, 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.
13/922,528 06/20/2013 Shmuel Shaffer 413058-US-
NP/AVA007PA
9679
136582 7590 01/21/2020
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
EXAMINER
AL AUBAIDI, RASHA S
ART UNIT PAPER NUMBER
2652
NOTIFICATION DATE DELIVERY MODE
01/21/2020 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):
pair_avaya@firsttofile.com
pto@sspatlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SHMUEL SHAFFER and REINHARD P. KLEMM

Appeal 2018-007691
Application 13/922,528
Technology Center 2600
____________

Before CARL W. WHITEHEAD JR., DAVID M. KOHUT, and
IRVIN E. BRANCH, Administrative Patent Judges.

KOHUT, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6 and 8−20.2 See Appeal Br. 14;
Final Act., Summary. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
“Avaya Inc.” Appeal Br. 2.
2 Claim 7 was previously cancelled. Appeal Br. 16 (Claims Appendix).
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STATEMENT OF THE CASE
APPELLANT’S INVENTION
Appellant’s invention relates to an “adaptive outbound campaign
[that] may adapt campaign parameters . . . based on real time public
sentiment;” e.g., “if the public shows negative sentiment related to any
outbound campaign[,] . . . the present invention may adapt the campaign
parameters to [garner a] . . . more positive public reaction.” Spec. ¶ 31.
Claim 1 recites the invention as follows (paragraphing added).
1. A method for configuring an adaptive outbound
campaign provided by a contact center, the method comprising:
monitoring, by a computer of the contact center, in real time
through an interface to a communication network, social media
to determine public sentiment related to the adaptive outbound
campaign, wherein the adaptive outbound campaign comprises
one or more parameters related to how the adaptive outbound
campaign is conducted; and
based on the determined public sentiment, changing, by the
computer of the contact center, at least one of the one or more
parameters related to how the adaptive outbound campaign is
conducted;
wherein the at least one of the one or more parameters is
changed while the adaptive outbound campaign is being
conducted and wherein changing the at least one of the one or
more parameters comprises modifying a frequency of one or
more notifications provided by the adaptive outbound
campaign.
Appeal Br. 15 (Claims Appendix).
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REJECTION
Claims 1–6 and 8–20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Herring (US 2012/0323627 A1; Dec. 20, 2012) and Berk
(US 2012/0002795 A1; Jan. 5, 2012). Final Act. 4–8.
OPINION
CLAIMS 1–5 AND 9–20
For the reasons below, we are unpersuaded of error in the rejection of
independent claim 1. For the same reasons, we are unpersuaded of error in
the rejections of claims 2–5 and 9–20, which are not separately argued
(Appeal Br. 10–14). See also 37 C.F.R. § 41.37(c)(1)(iv) (2017) (“Each
ground of rejection contested by appellant must be argued under a separate
heading[.] . . . When multiple claims subject to the same ground of
rejection are argued as a group . . . , the Board may select a single claim . . .
[to] decide the appeal . . . with respect to the group.”).
Claim 1 recites in disputed part (see infra): monitoring public
sentiment related to an adaptive outbound campaign; and, based on the
sentiment, modifying a frequency of a notification provided by the
campaign. We agree with the Examiner that Herring and Berk, in
combination, suggest these claim features. As the Examiner finds, Herring’s
web crawler determines and reports public sentiment for (i.e., resulting
from) a marketing campaign. Final Act. 4–5; Herring ¶¶ 1, 5, 20, 35, 37, 49.
Berk’s campaign management modifies an advertising campaign in response
to a report on the campaign’s effectiveness. Final Act. 5; Berk ¶¶ 22, 89–90,
96; abst. By these teachings, the Examiner finds that these references
suggest a system that: determines and reports the public’s sentiment for a
marketing campaign (Herring); and modifies the marketing campaign (i.e.,
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an advertisement is changed) in response to the report on the campaign’s
effectiveness (Berk). Final Act. 5–6; Ans. 8.
Appellant contends “it is unreasonable to determine that data
discovered by the web crawler in Herring discloses [the claimed]
‘notifications provided by the adaptive outbound campaign’, as this phrase
would be interpreted in light of the context of the present disclosure.”
Appeal Br. 11 (emphasis omitted). We are unpersuaded because Appellant
does not state how the claimed notification distinguishes over an
advertisement of a marketing campaign. Further, to the extent Appellant is
contending the claimed notification has different informational content than
an advertisement, claim 1 does not recite the notification’s informational
content (nor even identify its informational content) as functionally related
to the claimed method steps. See In re Distefano, 808 F.3d 845, 850–51
(Fed. Cir. 2015) (Printed matter, i.e., “claimed for what it communicates,”
has no patentable weight unless functionally or structurally related to the
claimed invention.).
Appellant also contends “it is unreasonable to interpret [the claimed]
‘changing the frequency of . . . notifications provided by the adaptive
outbound campaign’ . . . to encompass the scheduling of a web crawler that
scrapes data from a social media site.” Appeal Br. 11 (emphasis omitted).
We are unpersuaded because Appellant disregards the rejection. The
Examiner does not find Herring’s web crawler changes a frequency of
campaign notifications. The Examiner proposes a combination of Herring
and Berk that modifies the frequency of a marketing campaign’s
advertisement in response to sentiment analysis of the campaign. Ans. 8;
Final Act. 4–6. The Examiner further determines, in view of Herring’s
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system dynamically changing the frequency of web crawling reports, it was
within the skill in the art to dynamically modify the frequency of campaign
notifications. Ans. 8; see also Final Act., July 26, 2016, at 8 (explaining that
Herring’s web crawler evidences a “‘real-time’ . . . ability of the components
. . . to obtain, process and present relevant data; . . . e.g., on the order of
minutes”).
Appellant does not dispute that it would have been obvious to modify
the frequency of an advertisement based on monitored sentiment for the
advertisement (e.g., to cease an ineffective advertisement). See KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[Obviousness] analysis
should be made explicit[, but] . . . need not seek out precise teachings
directed to the specific subject matter of the challenged claim.”). Nor does
Appellant dispute that Herring and Berk suggest a capability in the art to
dynamically modify the frequency of a campaign notifications, e.g., an
advertisement. See id. (“Often, it will be necessary for a court to look
. . . [at] the background knowledge possessed by a person having ordinary
skill in the art.”); EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907
(Fed. Cir. 1985) (“A reference must be considered for everything it teaches
by way of technology and is not limited to the particular invention it is
describing and attempting to protect.”).
For the foregoing reasons, we sustain this rejection of claims 1–5 and
9–20 under 35 U.S.C. § 103(a).
CLAIM 6
Claim 6 depends from claim 1 and adds: “determining, by the
computer of the contact center, public sentiment about one or more
competing businesses for assessing an impact of the adaptive outbound
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campaign in context of the competing businesses.” Appeal Br. 16 (Claims
Appendix). Construing this step as monitoring public sentiment for a
competing business, the Examiner determines the step is obvious because
“logically part of the success of any competing business is to determine and
perform analysis about other businesses” (Final Act. 7) and an artisan “must
know what other businesses offer and how they conduct the businesses in
order to establish clear opinion on how to present business to public”
(Ans. 9). Appellant contends:
[C]laim 6 does not generically recite performing analysis of a
competitor. Claim 6 recites that the specific way to accomplish
the specific goal of assessing the impact of the outbound
campaign is to monitor sentiment related to the outbound
campaign that is specifically about a competing business.
Thus, Appellants urge that [the Examiner’s] general
observations about possible ways that businesses may perform
analysis of competitors are insufficient to render the specific
features of claim 6 obvious.
Appeal Br. 12.
We are persuaded of error. Though we do not agree that “general
observations . . . are insufficient to render . . . claim 6 obvious” (above block
quote), we agree the Examiner misconstrues claim 6 and thereby fails to
address its full scope. Claim 6’s invention does not merely determine public
sentiment for a competitor. Claim 6’s invention determines such sentiment
that results from claim 1’s campaign (“the adaptive outbound campaign,” as
recited in claim 6), which can be modified in response to public sentiment.
Thus, in addition to a teaching or suggesting to determine public sentiment
for a competitor, the Examiner must show (but does not) such public
sentiment results from and can be used to modify an advertising campaign.
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For the foregoing reasons, we do not sustain this rejection of claim 6
under 35 U.S.C. § 103(a).
CLAIM 8
Claim 8 depends from claim 1 and adds: “wherein changing the at
least one of the one or more parameters comprises at least one of: changing a
level of details of at least a first one of the one or more notifications
provided by the adaptive outbound campaign, or changing content of at least
a second one of the one or more notifications provided by the adaptive
outbound campaign.” Appeal Br. 16 (Claims Appendix).
Appellant contends “nothing in [Herring’s cited paragraphs 21 and
25–26] . . . refer[s] to parameters of conducting an outbound campaign
. . . [or] to changing one or more of the notifications that are sent out in the
outbound campaign.” Appeal Br. 13 (emphasis omitted). We are persuaded
of error insomuch that Herring’s cited paragraphs describe only changes to
sentiment analysis—not changes to notifications of a campaign (e.g., an
advertisement of a marketing campaign).
For the foregoing reasons, we do not sustain this rejection of claim 8
under 35 U.S.C. § 103(a).
CONCLUSION
We affirm the Examiner’s rejections of claims 1–5 and 9−20 under
35 U.S.C. § 103(a).
We reverse the Examiner’s rejections of claims 6 and 8 under
35 U.S.C. § 103(a).
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DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–6, 8–20 § 103(a) Herring, Berk 1–5, 9–20 6, 8

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 IN PART