Ex Parte Levine et al

Patent Trial and Appeal BoardDec 28, 2012

10939644 (P.T.A.B. Dec. 28, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JACOB LEVINE, JOHN MULLER, CHRISTOPHER PASSARETTI, and CHINGFA WU ____________________ Appeal 2010-008284 Application 10/939,644 Technology Center 2600 ____________________ Before KALYAN K. DESHPANDE, DAVID M. KOHUT, and LARRY J. HUME, Administrative Patent Judges. DESHPANDE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-008284 Application 10/939,644 2 STATEMENT OF CASE 1 The Appellants seek review under 35 U.S.C. § 134(a) of a final rejection of claims 1-48, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. The Appellants invented a diagnostic tool that enables collection of multiple recorded speech sessions and search capabilities for various failure points common to one or more of the recorded sessions. Specification 1:6-9. An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below [bracketed matter and some paragraphing added]: 1. A method of increasing an efficiency of a speech recognition application comprising: [1] recording on a storage device, a plurality of sessions with a speech recognition application; [2] determining if said recorded sessions include a common attribute; [3] grouping said recorded sessions determined to have said common attribute; and [4] providing access to at least 2 of said grouped recorded sessions for review. REFERENCES The Examiner relies on the following prior art: Hill US 2004/0162724 A1 Aug. 19, 2004 Williams US 2005/0105712 A1 May 19, 2005 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed January 4, 2010) and Reply Brief (“Reply Br.,” filed May 10, 2010), and the Examiner’s Answer (“Ans.,” mailed March 9, 2010), and Final Rejection (“Final Rej.,” mailed September 10, 2008). Appeal 2010-008284 Application 10/939,644 3 McCarthy Shaffer US 7,003,079 B1 US 2006/0050658 A1 Feb. 21, 2006 Mar. 9, 2006 REJECTIONS Claims 1-2, 11-12, 21-22, 31-32, and 41 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Williams. Claims 3, 13, 23, and 33 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Williams and Shaffer. Claims 4-5, 10, 14-15, 20, 24-25, 30, 34-35, 40, 42-43, and 48 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Williams and Hill. Claims 6-9, 16-19, 26-29, 36-39, and 44-47 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Williams and McCarthy. ISSUE The issue of whether the Examiner erred in rejecting claims 1-48 turns on whether Williams teaches or suggests limitations [2], [3], and [4] of independent claim 1, and as recited in independent claims 11, 21, 31, and 41. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ contentions that the Examiner has erred. We disagree with Appellants’ conclusions. 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 Appeal 2010-008284 Application 10/939,644 4 with the conclusion reached by the Examiner. We highlight the following arguments for emphasis. Independent claims 1, 11, 21, 31, and 41 Appellants first contend that Williams fails to teach or suggest “determining if said recorded sessions include a common attribute” and “grouping said recorded sessions determined to have said common attribute,” as recited in limitations [2] and [3] of claim 1 and as similarly recited by independent claims 11, 21, 31, and 41. App. Br. 19-22. We disagree with Appellants. As found by the Examiner, Williams describes machine learning in an automated response system that uses agent communications that are captured in a set of previously recorded agent- caller communications. Ans. 13 (citing Williams ¶ 0007). Williams explicitly describes applying a set of classifiers to categorize communications to identify common communication patterns (Williams ¶¶ 0015 and 0017), where the selection criteria used for categorization includes a requirement that a communication be followed by a number of successful subsequent communication exchanges between the person and an agent, a requirement that a communication be included within a conversation in which the person responded positively to a satisfaction question posed by an agent, a requirement that a communication in a first conversation be confirmed by similar communications occurring in a number of other conversations, or a requirement that a communication not cause a set of classifiers built using the communication to misclassify communications that a previous set of classifiers had classified correctly. Williams ¶ 0022. That is, criteria that classifiers use to categorize communications are an attribute that is common amongst that category of communications and the actual categorization of the communications is the Appeal 2010-008284 Application 10/939,644 5 same as grouping the communications. Accordingly, we agree with the Examiner that Williams teaches or suggests limitations [2] and [3] of claim 1 and as similarly recited by the other independent claims. Appellants argue that Williams only describes grouping communications based on party type (App. Br. 21), but we are unpersuaded by this argument because Appellants fail to provide any evidence or rationale to distinguish the categorization of communications based on selection criteria. Appellants also argue that the claimed invention requires a common attribute to include “a common failure between two sessions,” “an opt-out of an application,” or a “non-speech.” App. Br. 21. However, this argument is not persuasive because neither the claims nor the Specification narrow the scope of a “common attribute” and as such this argument is not commensurate with the scope of the claimed invention. Appellants also contend that Williams fails to teach or suggest “providing access to at least 2 of said grouped recorded sessions for review,” as recited by limitation [4] of claim 1 and as similarly recited by independent claims 11, 21, 31, and 41. App. Br. 22-23. Appellants specifically argue that “clustering is done based on the agent marking a call, but not based on a recorded sessions having a common attribute.” App. Br. 22. We disagree with Appellants. As discussed supra, we agree with the Examiner (Ans. 13) that Williams teaches or suggests that the recorded sessions have a common attribute. As such, we agree with the Examiner (Ans. 13) that Williams’s description of categorizing communications based on a common attribute and marking these communications for later review, by topic, suggests limitation [4] such that a person with ordinary skill in the art would have found it obvious. Appeal 2010-008284 Application 10/939,644 6 Dependent claims 2-10, 12-20, 22-30, 32-40, and 42-48 Appellants contend that that it is improper to combine Williams and Shaffer because Williams relates to recording caller agent sessions and Shaffer relates to conference calls via an interactive voice response (IVR) and as such there is no motivation to combine Williams and Shaffer. App. Br. 23-24. We disagree with Appellants. “Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor's endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011). Appellants’ argument is tantamount to an argument that Williams and Shaffer are not analogous prior art because they are in different fields of endeavor. However, Williams is concerned with improving the cost effectiveness of customer service by recording conversations between agents and customers and mining this data to improve training techniques. Williams ¶¶ 0005 and 0007. Shaffer is concerned with a system that uses an IVR system at a call center that allows live agents to participate on conference with a call, where the IVR allows direct interaction between callers and the system thus reducing the need for assigning a separate agent to handle an incoming call. Shaffer ¶ 0003. That is, both Williams and Shaffer are concerned with reducing costs at a call center through the use of automating some portion of the call center system, similar to the claimed invention concern about labor costs and automation of activities to reduce these costs. Specification 3:5-8. As such, both Williams and Shaffer are analogous prior art and the Examiner has properly combined them. Appeal 2010-008284 Application 10/939,644 7 Appellants further contend that Shaffer fails to teach or suggest “recording of any session between callers and agents,” the combinations of Williams/Hill and Williams/McCarthy fail to teach or suggests “determining if said recorded sessions include a common attribute, grouping said recorded sessions determined to have said common attribute, and providing access to at least 2 of said grouped recorded sessions for review.” We disagree with Appellants. As discussed supra, we agreed with the Examiner that Williams teaches or suggests these limitations. As such, Appellants’ contention does not persuade us of error on the part of the Examiner because Appellants are responding to the rejection by attacking the references separately, even though the rejection is based on the combined teachings of the references. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). CONCLUSION The Examiner did not err in rejecting claims 1-48. DECISION To summarize, our decision is as follows.  The rejection of claims 1-48 is sustained. Appeal 2010-008284 Application 10/939,644 8 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED ELD