Avaya Inc.

Patent Trials and Appeals Board

Apr 13, 2021

2020000004 (P.T.A.B. Apr. 13, 2021)

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.
14/586,691 12/30/2014 Reinhard Klemm 648.0272 8719
93379 7590 04/13/2021
Setter Roche LLP
1860 Blake Street
Suite 100
Denver, CO 80202
EXAMINER
MAHMUD, GOLAM
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
04/13/2021 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
sarah@setterroche.com
uspto@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte REINHARD KLEMM and VALENTINE MATULA
Appeal 2020-000004
Application 14/586,691
Technology Center 2400
Before ALLEN R. MACDONALD, ADAM J. PYONIN, and
MICHAEL J. ENGLE, 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. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Herein, “Appellant” refers to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Avaya Inc.
Appeal Br. 2.
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Application 14/586,691

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STATEMENT OF THE CASE
Introduction
The Application is directed to “a contact center, or other system for
responding to customers via social network channel(s), [that] is configured
so as to provide responses . . . to users determined to be members of . . .
respective population groups,” while “assessing the sensitivity of different
social network user populations to response time delays.” Spec. ¶ 19.
Claims 1–26 are pending; claims 1, 9, 18, and 22 are independent. Appeal
Br. 16–24. Claim 1 is reproduced below for reference (emphasis added):
1. A computer implemented method for determining
sensitivity of a user population to response time delays,
comprising:
in a server, using an Application Programming Interface
(API) of at least one social media server to monitor social
network messaging activity of the user population to identify
user messages created by members of the user population;
subdividing the user population into N groups, where N is
an integer greater than one;
scheduling respective responses to corresponding
identified user messages of the user population according to
group, wherein responses to user messages of any group are
delayed by a time delay different than those of each of the other
groups;
determining if a loyalty transition boundary exists between
any two groups of users, wherein the loyalty transition boundary
comprises a metric indicating a difference in aggregate user
sentiment between two groups of users; and
graphically presenting, to a user at a contact center via a
display device, an indication of the loyalty transition boundary
in correlation with the time delay for each of the two groups.

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Application 14/586,691

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Rejection2
Claims 1–26 are rejected under 35 U.S.C. § 101 as being directed to
patent ineligible patent matter. Final Act. 4.
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. 7, 8. We select claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv).

ANALYSIS
In January 2019, the U.S. Patent and Trademark Office (USPTO)
promulgated revised guidance on the application of § 101 (“Guidance”).3
The Manual of Patent Examining Procedure (“MPEP”) now incorporates
this revised guidance and subsequent updates at § 2106 (9th ed. Rev.
10.2019, rev. June 2020).4
Under MPEP § 2106, 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

2 The Examiner has withdrawn the obviousness rejection of the claims. See
Ans. 3.
3 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 RPSMEG”). In response to received public
comments, the USPTO issued further guidance on October 17, 2019,
clarifying the Guidance. USPTO, October 2019 Update: Subject Matter
Eligibility (the “October 2019 Update”). “All USPTO personnel are, as a
matter of internal agency management, expected to follow the guidance.” 84
Fed. Reg. at 51; see also October 2019 Update at 1.
4 All references to the MPEP are to the Ninth Edition, Revision 10.2019
(Last Revised June 2020), unless otherwise indicated.
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Application 14/586,691

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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 (“Step 2A, Prong Two”).
MPEP § 2106.04(a), (d).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we 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 activity” in the field; 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.
MPEP § 2106.05(d).
We agree with, and adopt as our own, the Examiner’s eligibility
analysis. We add the following primarily for emphasis and clarification with
respect to the Guidance.

A. Step 2A, Prong One
Appellant does not challenge the Examiner’s reasonable
determination that claim 1 recites an abstract concept. See Appeal Br. 7;
Reply Br. 2; see also Final Act. 4. Accordingly, we are not persuaded the
Examiner errs in determining particular claim limitations recite certain
methods of “organizing human activity and mental steps.” Final Act. 4; see
also Ans. 4, 5; Hyatt v. Dudas, 551 F.3d 1307, 1313–14 (Fed. Cir. 2008)
(The Board may treat arguments Appellant failed to make for a given ground
of rejection as waived).
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Accordingly, we conclude independent claim 1 recites a judicial
exception under Prong One of the Guidance. See 2019 RPSMEG, 84 Fed.
Reg. at 54; cf. NetSoc, LLC v. Match Grp., LLC, 838 F. App’x 544, 548
(Fed. Cir. 2020) (“Moreover, the claimed invention of establishing a social
network is an abstract idea pertaining to methods of organizing human
activity,” and “tracking a response time of participants, and updating
participant ratings are all human activities.”) (quotations omitted).

B. Step 2A, Prong Two
Appellant argues the claims are patent eligible pursuant to Step 2A,
Prong Two of the Guidance:
even if a generic computer was used to implement the limitations
of claim 1, that computer is improved based on what is the above
limitation displays to a user at a contact center. Essentially, if
the user at the contact center operates the computer as part of
their duties at the contact center, then that computer’s ability to
act as a tool for the user is improved by implementing the
limitations of claim 1.
In particular, displaying the indication of the loyalty transition
boundary in correlation with the time delay for each of the two
groups allows the user to better visualize timing for responses
and determine staffing requirements for the contact center
accordingly (see ¶ 0067). Without such a concise visualization,
the user may be unaware of the implications of various response
times and, therefore, may not staff the contact center for best
sentiment results.
Reply Br. 2; see also Appeal Br. 7 (“[T]he practical application is that the
limitations allow the user at the contact center to determine how long of a
response delay will affect sentiment.”).
We are not persuaded the Examiner errs pursuant to Prong Two of
Step 2A of the Guidance. See Ans. 6, 7; October Update at 12, 13.
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Appellant’s arguments focus on the graphically presenting limitation. That
the user can “better visualize timing for responses and determine staffing
requirements” (Reply Br. 2) does not integrate the recited exception into a
practical application. The claims do not change the underlying or other
technology; rather the claimed techniques merely display the judicial
exception. See Ans. 6, 7; Packet Intelligence LLC v. NetScout Sys., Inc., 965
F.3d 1299, 1318 (Fed. Cir. 2020) (“In the absence of specific technological
means for achieving the desired results, we have described the mere
collection, analysis, and display of information as falling within the realm of
abstract ideas.”); cf. Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084,
1090 (Fed. Cir. 2019) (“This invention makes the trader faster and more
efficient, not the computer. This is not a technical solution to a technical
problem.”).
We agree with the Examiner that Appellant’s disputed limitations
merely use the display functionality of “computers as a tool to implement
the abstract idea.” Ans. 6; 2019 RPSMEG, 84 Fed. Reg. at 55.
Accordingly, we determine claim 1 does not integrate the judicial exception
into a practical application. See 2019 RPSMEG, 84 Fed. Reg. at 54. As the
claim recites a judicial exception and fail to integrate the exception into a
practical application, the claims are “directed to the . . . judicial exception.”
Id. at 54.

C. Step 2B
The Examiner finds the “claimed invention fails to show an inventive
concept,” and does not contain limitations to “transform the claimed
invention into something significantly more than the abstract idea itself (step
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2B).” Ans. 7. We find the Examiner’s analysis reasonable, and Appellant
does not challenge the Examiner’s rejection pursuant to Step 2B of the
Guidance. See Reply Br. 2; see also Spec. ¶¶ 18, 86–90; 2019 RPSMEG 84
Fed. Reg. at 55–56.
Thus, we determine the claim limitations, individually and as an
ordered combination, do not provide significantly more than the recited
judicial exception. We sustain the Examiner’s eligibility rejection.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–26 101 Eligibility 1–26

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