Ex Parte Flockhart et al

Patent Trial and Appeal Board

Apr 9, 2018

12955676 (P.T.A.B. Apr. 9, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/955,676 11/29/2010
48500 7590 04/11/2018
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
FIRST NAMED INVENTOR
Andrew D. Flockhart
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
4366-571 7947
EXAMINER
GARCIA-GUERRA, DARLENE
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
04/11/2018 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):
cjacquet@sheridanross.com
pair_Avaya@firsttofile.com
edocket@sheridanross.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW D. FLOCKHART and ROBERT C. STEINER
Appeal2017-000153
Application 12/955,676
Technology Center 3600
Before CARLA M. KRIVAK, AMBER L. HAGY, and
MICHAEL M. BARRY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Avaya Inc. as the real party in interest. (App. Br. 2.)
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STATEMENT OF THE CASE
Introduction
According to Appellants, the claimed invention is directed to "[a]
contact center and methods and mechanisms for administering the same"
(Abs.), in which agents handle contacts (e.g., customer calls) that are
assigned to agent queues based on agent skills. (Spec. i-f 43.) According to
Appellants, contact centers aim to meet performance metrics in servicing
contacts, and one such performance metric is a "percent service level," in
which a certain percentage of contacts are handled within a designated
period of time. (Id. i-f 2.) To "increase the contact center's overall
operational efficiency and performance," Appellants' Specification describes
a contact center that "provides the ability to calculate short-term predictor
metrics for achieving particular percent service level objectives in a plurality
of skills, determine an optimal skill based on the comparison of short-term
predictor metrics, and assign an agent to the optimal skill." (Abs.; Spec.
,-r 44.)
Exemplary Claim
Claims 1, 10, and 18 are independent. Claim 1, reproduced below
with the disputed limitations italicized, is exemplary of the claimed subject
matter:
1. A method of operating a contact center, comprising:
receiving, at a server responsible for making contact
routing decisions in the contact center, an indication that an agent
of the contact center has become available to service a contact;
determining, at the server, that the agent is eligible to be
assigned to a first queue having a first skill associated therewith
and a second queue having a second skill associated therewith;
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obtaining a first level of expertise indicative of the agent's
proficiency with the first skill;
obtaining a second level of expertise indicative of the
agent's proficiency with the second skill;
determining, by the server, for the first queue, a short-term
predictor metric which considers the impact of a next contact in
the first queue failing to meet its service time objective, whereby
the short-term predictor is determined, at least in part, by
considering the mitigating impact of assigning the agent, with the
first level of expertise, to the first queue;
determining, by the server, for the second queue, a short-
term predictor metric which considers the impact of a next
contact in the second queue failing to meet its service time
objective, whereby the short-term predictor is determined, at
least in part, by considering the mitigating impact of assigning
the agent, with the second level of expertise, to the second queue;
comparing, by the server, the short-term predictor metric
of the first queue with the short-term predictor metric of the
second queue;
based on the comparison of the short-term predictor
metrics of the first and second queues, determining, by the
server, that the first queue at least one of (i) has a greater risk as
compared to the second queue of failing to meet its percent
service level objective and (ii) has a greater risk as compared to
the second queue of falling further behind meeting its percent
service level objective; and
in response to determining that at least one of (i) and (ii)
is true with respect to the first queue, assigning, by the server,
the agent to the first queue and not to the second queue.
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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Tonisson
Burok et al. ("Burok")
Petrovykh
Li et al. ("Li")
us 5,903,641
US 2003/0152212 Al
US 2003/0231647 Al
US 2010/0274637 Al
REJECTIONS2
May 11, 1999
Aug. 14, 2003
Dec. 18, 2003
Oct. 28, 2010
Claims 1-20 stand rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter. (Final Act. 3-7, 15-17.)
Claims 1--4, 9-12, and 17-20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Li, Burok, Tonisson, and Petrovykh. (Final Act.
7-13, 17--45.)
ISSUES
(1) Whether the Examiner erred in rejecting claims 1-20 under
35 U.S.C. § 101 as directed to patent-ineligible subject matter.
(2) Whether the Examiner erred in finding Li teaches or suggests
"based on the comparison of the short-term predictor metrics of the first and
second queues, determining, by the server, that the first queue at least one of
(i) has a greater risk as compared to the second queue of failing to meet its
percent service level objective and (ii) has a greater risk as compared to the
second queue of falling further behind meeting its percent service level
objective," as recited in independent claim 1 and commensurately recited in
independent claims 10 and 18.
2 All rejections are under the provisions of 35 U.S.C. in effect prior to the
effective date of the Leahy-Smith America Invents Act of 2011.
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(3) Whether the Examiner erred in finding the combination of Li
and Petrovykh teaches or suggests "in response to determining that at least
one of (i) and (ii) is true with respect to the first queue, assigning, by the
server, the agent to the first queue and not to the second queue," as recited in
independent claim 1 and commensurately recited in independent claims 10
and 18.
( 4) Whether the Examiner engaged in impermissible hindsight in
combining the teachings of Li, Burok, Tonisson, and Petrovykh in rejecting
independent claims 1, 10, and 18.
( 5) Whether the Examiner erred in finding Li teaches or suggests
"the server omits assigning the agent to the second queue even through the
agent is qualified to process contacts from the second queue," as recited in
dependent claim 2 and commensurately recited in dependent claim 11.
( 6) Whether the Examiner erred in finding Li teaches or suggests
"wherein the short-term predictor metrics of the first and second queues are
determined, at least in part, by calculating a predicted percent service level
value," as recited in dependent claim 4 and commensurately recited in
dependent claim 12.
(7) Whether the Examiner erred in finding Burok teaches or
suggests "wherein the short-term predictor metric of the first queue is less
than the short-term predictor metric of the second queue even though the
first queue is currently meeting its target service time objective but the
second queue is not currently meeting its target service time objective," as
recited in dependent claim 9 and commensurately recited in dependent
claims 1 7 and 19.
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ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments the Examiner has erred. We disagree with Appellants'
conclusions and we adopt as our own: (1) the findings and reasons set forth
by the Examiner in the action from which this appeal is taken; and (2) the
reasons set forth by the Examiner in the Examiner's Answer in response to
Appellants' Appeal Brief. We concur with the conclusions reached by the
Examiner, and we highlight the following for emphasis. 3
A. § 101 Rejection
Appellants dispute the Examiner's conclusion that claims 1-20 are
directed to patent-ineligible subject matter under 35 U.S.C. § 101. (App. Br.
9-14; Reply Br. 2---6.)
Appellants first assert that the claims are entitled to a streamlined
analysis as set forth in the 2014 Interim Guidance on Patent Subject Matter
Eligibility, 79 Fed. Reg. 74618 (December 16, 2014) ("Interim Guidance").
(App. Br. 9-10; Reply Br. 2.) The Interim Guidance provides: "For
purposes of efficiency in examination, a streamlined analysis can be used for
a claim that may or may not recite a judicial exception but, when viewed as
a whole, clearly does not seek to tie up any judicial exception such that
others cannot practice it." Interim Guidance, 79 Fed. Reg. at 74625. Thus, a
streamlined eligibility analysis is available to examiners who are of the view
that a claim clearly does not have a subject-matter eligibility problem. On
the other hand, the Interim Guidance also indicates a "full analysis should be
3 Only those arguments made by Appellants have been considered in this
decision. Arguments Appellants did not make have not been considered and
are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
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conducted" if there is doubt that the applicant is effectively seeking coverage
for a judicial exception. Id. Thus, it is at an examiner's discretion as to
whether a streamlined analysis is appropriate.
Appellants' argument that the Examiner was required, but failed, to
conduct a streamlined analysis is, therefore, not persuasive of error. The
Examiner determined the application might be may be directed to patent-
ineligible subject matter, and, accordingly, properly exercised discretion to
conduct a full analysis of the claims using the Mayol Alice two-step
framework, consistent with the guidance set forth in the USPTO's "2014
Interim Guidance on Patent Subject Matter Eligibility," 79 Fed. Reg. 74618
(Dec. 16, 2014 ), in effect at the time the Final Office Action was mailed.
(Final Act. 3-7, 15-17; Ans. 35--44.)
We tum now to evaluating Appellants' arguments in the context of the
Mayo/Alice two-step framework. In the first step of the analysis, we
determine whether the claims at issue are "directed to" a judicial exception,
such as an abstract idea. Alice Corp. v. CLS Bankint'l, 134 S. Ct. 2347,
2355 (2014) (setting forth analytical "framework for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts") (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71-73 (2012)).
If the claims are not directed to a judicial exception, the inquiry ends.
Thales Visionix Inc. v. US., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfzsh,
LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims
are determined to be directed to a judicial exception (such as an abstract
idea), then we consider under step two whether the claims contain an
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"inventive concept" sufficient to "transform the nature of the claim into a
patent-eligible application." Alice, 134 S. Ct. at 2355 (citation omitted).
Noting that the two stages involve "overlapping scrutiny of the
content of the claims," the Federal Circuit has described "the first-stage
inquiry" as "looking at the 'focus' of the claims, their 'character as a
whole,"' and "the second-stage inquiry (where reached)" as "looking more
precisely at what the claim elements add-specifically, whether, in the
Supreme Court's terms, they identify an 'inventive concept' in the
application of the ineligible matter to which (by assumption at stage two) the
claim is directed." Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016). In considering whether a claim is directed to an
abstract idea, we acknowledge-as did the Court in Mayo----that "all
inventions at some level embody, use, reflect, rest upon, or apply laws of
nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We,
therefore, look to whether the claims focus on a specific means or method
that improves the relevant technology or are instead directed to a result or
effect that is itself the abstract idea and whether the claims merely invoke
generic processes and machinery. See Enfzsh, 822 F.3d at 1336.
Step One: Whether the Claims Are Directed to a Patent-Ineligible
Concept (Abstract Idea)
In applying the framework set out in Alice, and as the first step of that
analysis, the Examiner concludes the claims are directed to "the abstract idea
of managing a contact center." (Final Act. 15.) In particular, the Examiner
finds the claims "include limitations that describe concepts relating to
managing relationships or transactions between people," such as receiving
an indication that an agent of the contact center has become available to
service a contact, determining that the agent is eligible to be assigned, and
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assigning the agent to a queue. (Ans. 36.) The Examiner further notes
"[ c ]oncepts relating to interpersonal and intrapersonal activities, such as
managing relationships or transactions between people, social activities and
human behavior, are considered 'certain methods of organizing human
activity."' (Id.) We agree. Claim 1 is directed, in part, to assigning
employees (e.g., contact center agents) to tasks (e.g., handling the next call
in an assigned queue) based on the employees' skills and ability to most
efficiently service a need (e.g., to prevent a queue of calls to the contact
center from falling behind or further behind in meeting service level
objectives), which are fundamental steps in organizing human activity in an
employment environment. As such, claim 1 is directed to the abstract idea
of managing human behavior. (See Ans. 35-36.)
Appellants' assertion that assigning an agent to one queue versus
another does not fall within the scope of "certain methods of organizing
human activity" because it does not involve "relationship[ s] between people,
social activity, etc.," is not persuasive because it ignores the broader scope
of "methods of organizing human activity" in the very source cited by
Appellants. (App. Br. 12 (citing July 2015 Update: Subject Matter
Eligibility "2015 Update").) According to the July 2015 Update cited by
Appellants, patent-ineligible methods of organizing human behavior are not
limited to managing relationships between people or social activities, but
broadly include "managing ... human behavior." (2015 Update p. 4.) As
the Examiner finds, and we agree, assigning employees (agents) to handle
particular tasks (calls to a contact center), even if automated by a computer
system, involves managing human behavior. (See Ans. 35-36.)
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Similarly unpersuasive is Appellants' assertion that unpatentable
methods of organizing human activities are limited to the particular
scenarios addressed in the cases cited at pages 4--5 of Appellants' Reply
Brief. The examples provided in the 2015 Update cited by Appellants are
simply that---examples. Moreover, we observe that assigning agents at a
contact center to certain queues based on the application of particular rules
and algorithms, as in Appellants' claimed invention, amounts to directing
human activities according to the application of rules or algorithms, which is
similar to the claims courts have held to be directed to patent-ineligible
abstract ideas. See, e.g., Accenture Global Services, GmbH v. Guidewire
Software, 728 F.3d 1336, 1344 (Fed. Cir. 2013) (generating task-based rules
based on an event); In re Ferguson, 558 F.3d 1359, 1364 (Fed. Cir. 2009)
(structuring a sales force or marketing company); In re Maucorps, 609 F. 2d
481 (CCPA 1979) (using an algorithm for determining the optimal number
of visits by a business representative to a client).
The Examiner additionally finds the claims "consistently recite[]
limitations that are essentially directed to comparing new and stored
information and using rules to identify options," such as comparing "short-
term predictor metric[ s ]" for different queues and, based on the comparison,
determining relative risks of failing to meet, or falling further behind in
meeting, "percent service level objective[s]." (Ans. 37.) The Examiner
notes that "gathering data, comparing data and computing a short-term
predictor metric is considered an abstract idea, specifically an idea of itself,"
and analogizes such subject matter to "collecting and comparing known
information," as addressed in Classen. (Id.) See Classen Immunotherapies
Inc. v. Biogen IDEC, 659 F.3d 1057, 1067---68 (Fed. Cir. 2011) (holding a
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claim involving "the idea of collecting and comparing known information,"
without more, is directed to an abstract idea). We agree, and we further note
that our reviewing court has repeatedly held that information collection and
analysis, including when limited to particular content, is within the realm of
abstract ideas. See, e.g., Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016) (holding that "collecting information, analyzing
it, and displaying certain results of the collection and analysis" are "a
familiar class of claims 'directed to' a patent-ineligible concept"); Fair
Warning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016) (claims directed to collecting information and analyzing it according
to certain rules were directed to an abstract idea); CyberSource Corp. v.
Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011) (computer-
implemented system for "verifying the validity of a credit card transaction[]
over the Internet" was patent-ineligible); Accenture Global Servs., GmbH v.
Guidewire Software, Inc., 728 F.3d 1336, 1344--45 (Fed. Cir. 2013) (patent-
ineligible claims recited "generalized software components arranged to
implement an abstract concept [of generating insurance-policy-related tasks
based on rules to be completed upon the occurrence of an event] on a
computer").
We additionally note that a claim need not be addressed to a single
abstract idea to be patent ineligible. As our reviewing court has held,
combining several abstract ideas does not render the combination any less
abstract. RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1327
(Fed. Cir. 2017) ("Adding one abstract idea ... to another abstract idea ...
does not render the claim non-abstract."); see also FairWarning IP, 839 F.3d
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at 1093-94 (patent-ineligible claims were directed to a combination of
abstract ideas).
We have considered all of Appellants' arguments challenging the
characterization of their claims as being directed to abstract ideas, but we do
not find them to be persuasive of error. (App. Br. 10-12; Reply Br. 3-6.)
Rather, we agree with the Examiner, at step one of the Alice analysis, that
the claims are directed to one or more abstract ideas. Accordingly, we tum
to the second step of the Alice analysis, in which we determine whether the
additional elements of the claims transform them into patent-eligible subject
matter.
Step Two: Whether Additional Elements Transform the Idea Into
Patent-Eligible Subject Matter
Having concluded that the claims are directed to an abstract idea, the
Examiner also finds that the additional elements or combinations of
elements beyond the abstract idea do not amount to "significantly more"
than the abstract idea itself. (Final Act. 5-7, 15-17; Ans. 38--44.) In
particular, the Examiner finds:
[T]here is no actual improvement to another technology or
technical field, no improvement to the functioning of the
computer itself, and no meaningful limitations beyond generally
linking the use of the abstract idea to a particular technological
environment evident in the claims. The steps recited in
[Appellants' claims] could be programmed to be performed on a
variety of different computer platforms.
(Final Act. 6.) The Examiner also finds "[t]he recited elements, e.g., a
processor and a data repository[,] are all generic computer elements." (Ans.
38.)
Appellants assert that the claimed invention establishes "meaningful
limitations" because "the claims are directed to the assignment of an agent to
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one of two work queues depending on skills and the risk associated with not
assigning the agent to the other of the two work queues." (App. Br. 15.)
Appellants do not, however, persuasively argue why the cited claim
limitations contain an inventive concept that transforms the abstract idea into
patent-eligible subject matter. The need for effective assignment of contact-
center agents to particular call queues, as Appellants' claimed invention
purports to address, is not a technical problem; it is a business problem. And
assigning agents to queues by taking into consideration relative risks of
assigning them to one queue over another, as in Appellants' claimed
invention, is a commercial solution, not a technical solution.
Appellants also insist "the claims cannot be practiced by an unaided
human." (Reply Br. 6.) Appellants overstate the technical nature of the
claims. At most, the claims (and Specification) refer to the use of a "server"
or a "computing system." But even under Appellants' argument that the
claimed invention requires the use of a computer, mere application of an
abstract idea on a computer system does not make a claimed invention
patentable. See Alice Corp., 134 S. Ct. at 2358 ("[I]f a patent's recitation of
a computer amounts to a mere instruction to 'implemen[t ]' an abstract idea
'on ... a computer,' []that addition cannot impart patent eligibility.")
(citations omitted). Notably, although Appellants' Specification describes
various systems for routing calls, Appellants' Specification broadly states
that the server "can be any architecture for directing contacts to one or more
communication devices." (Spec. i-f 42 (emphasis added).) And Appellants
do not argue that their claims are directed to any improvement in computer
technology or the underlying hardware.
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In that regard, we note that there is a fundamental difference between
computer functionality improvements, on the one hand, and uses of existing
computers as tools to perform a particular task, on the other. Indeed, the
Federal Circuit applied this distinction in Enfish in rejecting a§ 101
challenge because the claims at issue focused on a specific type of data
structure, i.e., a self-referential table for a computer database, designed to
improve the way a computer carries out its basic functions of storing and
retrieving data, and not merely on asserted advances in uses to which
existing computer capabilities could be placed. Enfzsh, 822 F.3d at 1335-36.
We find no parallel here between the claims before us and the claims
in Enfzsh, nor can we identify any comparable aspect in the claims before us
that represents "an improvement to computer functionality"-i.e., an
improvement in the way a computer carries out its basic functions. (See
Ans. 38--44.) The alleged advantages that Appellants tout do not concern an
improvement to computer capabilities, but instead relate to an alleged
improvement in the way a contact center is managed by employing rules-
based comparisons to be "more efficient" in assigning agents to queues in
order to "maintain[] or at least mitigat[e] objectives." (See Reply Br. 7.)
We also are not persuaded of Examiner error by Appellants' argument
that the pending claims are patent-eligible because the claims contain
sufficient other meaningful elements so that the claims "comprise more than
a drafting effort designed to monopolize an exception." (App. Br. 15
(emphasis omitted).) There is no dispute that the Supreme Court has
described "the concern that drives this exclusionary principle [i.e., the
exclusion of abstract ideas from patent eligible subject matter] as one of pre-
emption." See Alice Corp., 134 S. Ct. at 2354. However, characterizing
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preemption as a driving concern for patent eligibility is not the same as
characterizing preemption as the sole test for patent eligibility. As our
reviewing court has explained: "The Supreme Court has made clear that the
principle of preemption is the basis for the judicial exceptions to
patentability" and "[ fJor this reason, questions on preemption are inherent in
and resolved by the§ 101 analysis." Ariosa Diagnostics, Inc. v. Sequenom,
Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice Corp., 134 S. Ct. at
2354). Although "preemption may signal patent ineligible subject matter,
the absence of complete preemption does not demonstrate patent eligibility."
Id. (See also Ans. 39-40.)
Appellants also argue their claims are patent eligible because they
"are directed to novel and unconventional steps that confine the claim[ s] to a
particular useful application, assignment of an agent to minimize an
identified risk." (App. Br. 15.) As noted infra, however, we agree with the
Examiner's conclusion that at least claims 1--4, 9--12, and 17-20 are not
patentable over the cited art. But even if novel and nonobvious, a claim
directed to a purely abstract idea is, nonetheless, patent-ineligible. See
Mayo, 566 U.S. at 90. Thus, an abstract idea does not transform into an
inventive concept just because the Examiner has not cited prior art that
discloses or suggests it. Indeed, "[t]he 'novelty' of any element or steps in a
process, or even of the process itself, is of no relevance in determining
whether the subject matter of a claim falls within the § 101 categories of
possibly patentable subject matter." Diamond v. Diehr, 450 U.S. 175, 188-
89 (1981 ). Therefore, even as to claims that the Examiner concludes are
allowable over the art of record, such novelty would not persuade us that the
claims are patent eligible under§ 101. (See also Ans. 44.)
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For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting independent claim 1 under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter, or in rejecting on the same basis independent
claims 10 and 18, as well as dependent claims 2-9, 11-17, 19, and 20, which
Appellants do not argue separately. (App. Br. 8.) We, therefore, sustain this
rejection.
B. § 103 Rejection
The Examiner finds the combination of Li, Burok, Tonisson, and
Petrovykh teaches or suggests the limitations of independent claim 1. (Final
Act. 17-36.) With regard to the disputed limitation of "based on the
comparison of the short-term predictor metrics of the first and second
queues, determining, by the server, that the first queue at least one of (i) has
a greater risk as compared to the second queue of failing to meet its percent
service level objective and (ii) has a greater risk as compared to the second
queue of falling further behind meeting its percent service level objective,"
the Examiner relies on Li. (Id. at 25-267 .) In particular, the Examiner finds
Li discloses, in connection with managing a contact center, comparing
predictor metrics of first and second queues and determining whether
resources "may need to be reallocated" between queues to "correct the
situation" if it appears that a queue is at risk of failing to satisfy a Key
Performance Indicator (KPI) according to a Service Level Agreement (SLA)
for the contact center. (Id. (citing Li i-fi-125, 68.) The Examiner further finds:
Li relates generally to contact centers and particularly to contact
center monitoring and control. . . . [Li makes] a determination
based upon the claimed risk of falling further behind meeting its
percent service level objective. For instance, Li describes that
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when the threshold has a high probability of cross over, it
indicates that a KPI or other SLA target may be missed (or
violated). A calculation can be performed to understand the
priority of the threshold against previously administered
enterprise SLA goals. If high priority contact center resources
may need to be reallocated to correct the situation, additional
processing will continue to determine the optimal solution for the
contact center based on a variety of factors as predetermined by
the enterprise; these could include, without limitation,
reassignment of agents, diversion of traffic (or inbound or
outbound contacts), call back of staff, etc.
(Ans. 45.)
With regard to mapping the claimed "percent service level objective"
to Li's disclosure, the Examiner finds:
[F]or examination purposes[,] the action of comparing the
thresholds of a first queue with a second queue to determine if
there's a risk of the first group of missing the service level
agreement target was equated to the action of comparing two
queues to determine which queue has a greater risk of failing to
meet its percent service level objective. As described in the
previous Office Action, the SLA target has been equated to the
percent service level objective. Li teaches that [t]he SLA sets
one or more thresholds for the KPI and, for each threshold,
defines a consequence, typically a monetary penalty, in the event
that the KPI crosses the threshold absolutely or for the duration
of a defined time interval.
(Ans. 46.)
Appellants argue the Examiner's findings regarding Li are in error
because Li fails to disclose "evaluation of a risk" of failing to meet a percent
service level objective, as "recited in claim 1," but instead discloses "a
threshold and an impact associated with a failure to meet a service objective
for two customer queues utilizing two different thresholds and having two
different consequences for a contact center falling below the thresholds."
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(App. Br. 17 .) Appellants further contend Li fails to disclose the disputed
limitation because "a risk of an event is different from a threshold and a
consequence associated with the threshold." (Id.) Appellants articulate the
argument more directly in their Reply Brief, asserting claim 1 requires
determining relative risk as between two different queues, and further
asserting "[ w ]hile Li may be attempting to address a similar issue, Li still
remains silent to, inter alia, whether the first queue has a greater risk,
compared to a second queue, of failing to meet its objectives and falling
further behind." (Reply Br. 8.)
We are not persuaded by Appellants' argument because it is premised
on an overly narrow view of Li, which ignores Li's disclosure of assessing a
relative risk as between queues of causing a Key Performance Indicator
("KPI") to cross a threshold. As noted above, the Examiner finds, and we
agree, Li discloses determining whether one queue has a greater risk than
another of failing to meet its objective. (Ans. 46.) The Examiner's findings
are supported by Li, which discloses determining a "risk" that a selected KPI
for a queue will cross a threshold. (Li i-f 68.) If Li's system determines there
is a "risk of the selected KPI crossing the selected threshold," then the
system will make recommendations and assess the "cost/benefit of each
recommendation." (Id. i-fi-171, 75.) In making this assessment, Li's system
considers, for example, whether to "reassign one agent from a first agent
queue 212a to a second agent queue 212b to prevent a KPI associated with
the second agent queue 212b from passing a selected threshold." (Id. i-f 76.)
Li discloses that part of the consideration includes determining the
likelihood that the reassignment of an agent from the first queue to the
second queue may then cause the first queue to cross over a selected
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threshold-in other words, Li considers whether moving an agent to a
second queue may pose a risk of the first queue failing to meet its objective.
(Id.) Li then discloses that the system evaluates the relative risk by
calculating the "penalty or benefit" of each queue failing to meet its
objective "multiplied by the probability that it will occur in response to the
recommendation." (Id.)
Thus, we disagree with Appellants' contention that Li fails to consider
whether one queue has a "greater risk as compared to" another queue of
failing to meet its objective. (See Reply Br. 8.) As the Examiner finds, and
we agree, Li does disclose assessing the relative risk of moving an agent
from one queue to another, this risk premised on an assessment of which
queue has a greater risk of failing to meet its service level objective. We,
therefore, are not persuaded of error in the Examiner's finding that Li
discloses the disputed limitation.
Appellants also argue the Examiner erred in finding the cited
combination of Li and Petrovykh teaches or suggests "in response to
determining that at least one of (i) and (ii) is true with respect to the first
queue, assigning, by the server, the agent to the first queue and not to the
second queue." (App. Br. 17-18.) We disagree. The Examiner finds, and
we agree, Petrovykh discloses reassignment of resources (agents) from one
group to another if a queue is in danger of a time threshold being breached:
Petrovykh relates to managing a communication center by
assigning agents to different groups. Moreover, Petrovykh
discloses that[,] for example, in the first case using the simple
example of groups 1 and 2, a resource re-allocation
recommendation may not be issued until a snapshot of queue
activity reflects an event-purpose shift from technical service
requirements to account management requirements above a
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certain percentage of events waiting. In the second case, the
threshold for issuing a re-allocation of resource recommendation
may occur only if the resource-starved events begin to breach a
time threshold for waiting for a response. Once the time
threshold is reported to be breached[,] a recommendation to re-
allocate resources is issued to add resources for those particular
events [paragraph 0231]. Since a reassignment of an agent to
group 1 is essentially an assignment of an agent to a first queue,
it is determined that the method and apparatus for optimizing
response time to events in queue does indeed assign the agent to
the first queue and not to the second queue.
(Ans. 48--49 (emphases added).) Appellants do not persuasively rebut these
findings.
We are also not persuaded by Appellants' argument that the Examiner
engaged in impermissible hindsight reconstruction in combining the
teachings of Li and Petrovykh. (App. Br. 19.) In particular, Appellants
argue "Petrovykh discloses queues only as a means for holding work items
that may be segregated by media type and fails to consider an agent being
eligible to work two skill-based queues. Li discloses the prediction of
threshold exceptions and a combination wherein tasks within a queue are
reordered." (Id.)
Appellants' argument is not persuasive. We recognize the Examiner
must articulate "reasoning with some rational underpinning to support the
legal conclusion of obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006). However, the Examiner's reasoning need not appear in, or be
suggested by, one or more of the references on which the Examiner relies.
Instead, a reason to combine teachings from the prior art "may be found in
explicit or implicit teachings within the references themselves, from the
ordinary knowledge of those skilled in the art, or from the nature of the
problem to be solved." WMS Gaming Inc. v. Int'! Game Tech., 184 F.3d
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1339, 1355 (Fed. Cir. 1999) (citing In re Rouffet, 149 F.3d 1350, 1355 (Fed.
Cir. 1998) ). "Under the correct [obviousness] analysis, any need or problem
known in the field of endeavor at the time of invention and addressed by the
patent can provide a reason for combining the elements in the manner
claimed." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007).
In the instant appeal, the Examiner has provided rationales supporting
motivation by a person of ordinary skill in the art to achieve the claimed
subject matter by combining the teachings of Li, Burok, and Tonisson with
Petrovykh. (Final Act. 33-36.) For example, the Examiner finds the
modification of Li, Burok, and Tonisson with Petrovykh is "merely a
combination of old elements, and in the combination each element merely
would have performed the same functions as it did separately, and one of
ordinary skill in the art would have recognized that the results of the
combination were predictable," and further finds "[ t ]he combination
provides a more comprehensive method by allowing allocat[ion of]
resources to best handle the events stacked in queue." (Final Act. 35-36.)
Appellants have not provided persuasive evidence or a persuasive line of
reasoning explaining why the Examiner's stated rationales are erroneous.
Moreover, as noted above, assigning an agent to one queue over another,
based on a determination of relative risk of each queue failing to meet
service level objectives, is consistent with Li's disclosure of determining the
relative risk of reassigning an agent from one queue to another. (Li i-f 76.) If
an agent is reassigned to a different queue, the agent is no longer assigned to
the original queue. Consequently, we are not persuaded that the Examiner
engaged in impermissible hindsight in combining the teachings of the cited
references.
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For the foregoing reasons, we are not persuaded of error in the
Examiner's 35 U.S.C. § 103(a) rejection of independent claim 1, or of
claims 3, 10, 18, or 20, argued collectively with claim 1. We, therefore,
sustain the rejection of those claims.
Appellants present separate arguments with regard to dependent
claims 2, 4, 9, 11, 12, 17, and 19. (App. Br. 20.) Claims 2 and 11 depend
from independent claims 1 and 10, respectively. Claim 2 recites "the server
omits assigning the agent to the second queue even though the agent is
qualified to process contacts from the second queue." (Claims App'x 3.)
Claim 11 contains a commensurate recitation. (Id. 6.) The Examiner finds,
and we agree, this limitation is taught by Li, which discloses that an agent
may have multiple skills to qualify the agent to be assigned to multiple
queues. (Final Act. 36 (citing Li i-f 49).) The Examiner further finds, and we
agree, Li discloses removing agents from a second queue and moving them
to a first queue based on a "tradeoff calculation" to determine the impact of
reassigning agents. (Id. (citing Li i-f 83).) Thus, Li discloses an agent is
qualified to service both queues, but is assigned to one queue instead of
another based on a tradeoff calculation. Appellants do not persuasively
rebut these findings. We, therefore, sustain the Examiner's rejection of
independent claims 2 and 11.
Claims 4 and 12 depend from claims 1 and 10, respectively. Claim 4
recites "wherein the short-term predictor metrics of the first and second
queues are determined, at least in part, by calculating a predicted percent
service level value." (Claims App'x 3.) Claim 12 recites a commensurate
limitations. (Id. 6.) The Examiner finds Li teaches these limitations by
disclosing Key Performance Indicators, including "predicted wait time," to
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calculate "performance relative to their Service Level Agreements," and also
discloses a "real time threshold prediction module" that determines whether
a "selected performance measure will, during a future time interval, likely
cross a selected threshold." (Final Act. 3 8 (citing Li i-fi-1 6, 14--18) (emphases
added).) Appellants' argument that Li discloses only "observed" or
"indicated" Key Performance Indicators, and fails to disclose "predicted
percent service level value" (App. Br. 20 (emphases omitted)), is not
consistent with the teachings of Li, and is, therefore, not persuasive of
Examiner error. We sustain the Examiner's rejection of claims 4 and 12.
Claim 9 depends from claim 1 and recites "wherein the short-term
predictor metric of the first queue is less than the short-term predictor metric
of the second queue even though the first queue is currently meeting its
target service time objective but the second queue is not currently meeting
its target service time objective." (Claims App'x 4.) Claims 17 and 19
depend from claims 10 and 18, respectively, and recite similar limitations.
(Id. at 7, 9.) The Examiner finds Burok discloses assigning different
thresholds to work items and also discloses a determination of critical status
based on the work activity status of that work item relative to its threshold.
(Final Act. 41.) In other words, according to Burok, a work item may be
closer to meeting its objective than another work item, but may still be
deemed unacceptable because the work item is more critical than the other.
(See Burok Abs., claim 19, and i184.) We agree the Examiner's findings are
supported by the cited teachings. Appellants do not address these findings
by the Examiner, and hence do not persuade us of error. We, therefore,
sustain the Examiner's rejection of claims 9, 17, and 19.
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The Examiner indicates that claims 5-8 and 13-16 are allowable over
the art of record, but objects to these claims as being "dependent upon a
rejected base claim." (Final Act. 14.) Although the Examiner indicates
these claims would be "allowable if rewritten in independent form" (id.), we
note that this would not cure their status as being rejected under 35 U.S.C.
§ 101 as directed to patent-ineligible subject matter.
DECISION
The Examiner's rejection of claims 1-20 under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter is affirmed.
The Examiner's rejection of claims 1--4, 9-12, and 17-20 under
35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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