Ex Parte Moll

Patent Trials and Appeals BoardJun 26, 2019

13327917 - (D) (P.T.A.B. Jun. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/327,917 12/16/2011 87048 7590 06/28/2019 Jordan IP Law (IBM - SVL) 12501 PROSPERITY DRIVE SUITE401 SIL VER SPRING, MD 20904 FIRST NAMED INVENTOR Georges-Henri Moll 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. FR920100012US1 7707 EXAMINER HATCHER, DEIRDRE D ART UNIT PAPER NUMBER 3683 NOTIFICATION DATE DELIVERY MODE 06/28/2019 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): admin@jordaniplaw.com info@jordaniplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GEORGES-HENRI MOLL 1 Appeal2018-002142 Application 13/327,917 Technology Center 3600 Before CARL W. WHITEHEAD, JR., BRADLEY W. BAUMEISTER, and JASON V. MORGAN, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Introduction This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1--4, 6, 8-12, 14, and 16-23. Claims 5, 7, 13, and 15 are canceled. Amend. 3, 5 (Apr. 4, 2016). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellant is the applicant and real party in interest, International Business Machines Corporation. Appeal Br. 4. Appeal2018-002142 Application 13/327,917 Summary of disclosure The Specification discloses automatically dispatching tasks "to a queue for being processed by at least one out of multiple resources" using a process that includes "generating a forecast of further tasks to be dispatched in the future." Abstract. Representative claim (key limitations emphasized) 1. A method comprising a processor implementing: generating automatically a forecast of at least one task in a business process management system to be dispatched in the future, wherein the forecast is based on historical task data; calculating automatically a resource allocation proposal for at least one current task under concurrent consideration of the forecast and a current state of a first queue to which the at least one current task is to be dispatched and is not yet dispatched; calculating automatically a recommendation to dispatch the at least one current task to the first queue under consideration of the resource allocation proposal and an optimized plan of an allocation of at least one resource including an evaluation of a dependency between two or more of the at least one current task; dispatching automatically the at least one current task in the business process management system to the first queue to change a state of the first queue under consideration of the recommendation to be processed by one or more of the at least one resource; comparing automatically a current state of the first queue including the change in the state of the first queue and a current state of a second queue to the forecast to detect a mismatch and generate a reality-to-forecast divergence metric, wherein the first queue and the second queue are each a resource queue; refreshing automatically the forecast to transform the forecast to an actualized forecast when the reality-to-forecast divergence metric exceeds a threshold value; and 2 Appeal2018-002142 Application 13/327,917 dispatching automatically at least one other task in the business process management system under consideration of the actualized forecast to be processed by one or more of the at least one resource. Rejections The Examiner rejects claims 1--4, 6, 8-12, 14, and 16-23 under 35 U.S.C. Â§ 101 as being directed to patent-ineligible subject matter. Final Act. 2-5. The Examiner rejects claims 1-3, 6, 9-11, 14, and 17-19 under 35 U.S.C. Â§ I03(a) as being unpatentable over McCord (US 8,315,370 B2; Nov. 20, 2012), Ratakonda et al. (US 2010/0010859 Al; published Jan. 14, 2010) ("Ratakonda"), and Stenning (US 2007/0286220 Al; published Dec. 13, 2007). Final Act. 6-12. The Examiner rejects claims 4, 12, and 20 under 35 U.S.C. Â§ I03(a) as being unpatentable over McCord, Ratakonda, Stenning, and Froehlich et al. (US 2004/0181370 Al; published Sept. 16, 2004) ("Froehlich"). Final Act. 12-13. The Examiner rejects claims 8 and 16 under 35 U.S.C. Â§ I03(a) as being unpatentable over McCord, Ratakonda, Stenning, and Kakouros et al. (US 2004/0088211 Al; published May 6, 2004) ("Kakouros"). Final Act. 13-15. The Examiner rejects claim 21 under 3 5 U.S. C. Â§ 1 0 3 (a) as being unpatentable over McCord, Ratakonda, Stenning, and Moll (US 2009/0228309 Al; published Sept. 10, 2009). Final Act. 15. The Examiner rejects claim 22 under 35 U.S.C. Â§ I03(a) as being unpatentable over McCord, Ratakonda, Stenning, Kakouros, and Duggirala (US 2005/0240466 Al; published Oct. 27, 2005). Final Act. 16-18. 3 Appeal2018-002142 Application 13/327,917 The Examiner rejects claim 23 under 35 U.S.C. Â§ I03(a) as being unpatentable over McCord, Ratakonda, Stenning, and Durinovic-Johri et al. (US 6,263,065 Bl; issued July 17, 2001) ("Durinovic-Johri"). Final Act. 18-19. 35 U.S.C. Â§ 101 Principles of law To be statutorily patentable, the subject matter of an invention must be a "new and useful process, machine, manufacture, or composition of matter, or [a] new and useful improvement thereof." 35 U.S.C. Â§ 101. There are implicit exceptions to the categories of patentable subject matter identified inÂ§ 101, including: (1) laws of nature; (2) natural phenomena; and (3) abstract ideas. Alice Corp. v. CLS Bankint'l, 573 U.S. 208,216 (2014). The Supreme Court has set forth a framework for distinguishing patents with claims directed to these implicit exceptions "from those that claim patent- eligible applications of those concepts." Id. at 217 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012)). The evaluation follows a two-part analysis: (1) determine whether the claim is directed to a patent-ineligible concept, e.g., an abstract idea; and (2) if so, then determine whether any element, or combination of elements, in the claim is sufficient to ensure that the claim amounts to significantly more than the patent-ineligible concept itself. See id. at 217-18. "[A]ll 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 "'must be careful to avoid oversimplifying the claims' by looking at them generally and failing to account for the specific requirements of the claims." McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 4 Appeal2018-002142 Application 13/327,917 1313 (Fed. Cir. 2016) (quoting TL! Commc'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016)). We, therefore, look to whether: (1) the claims focus on a specific means or method that improves the relevant technology or (2) the claims are instead directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery. See Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016). That is, we look to whether the claims are "specifically designed to achieve an improved technological result in conventional industry practice." McRO, 837 F.3d at 1316 (emphasis added) (citing Alice, 573 U.S. at 222-24). The U.S. Patent and Trademark Office (USPTO) recently published revised guidance on the application of the two-part analysis. US PTO Memorandum of January 7, 2019, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 ("Memorandum"). Under that guidance, 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 human activity such as a fundamental economic practice, or mental processes) (see id. at 54 (step 2A-prong one)); and (2) additional elements that integrate the judicial exception into a practical application (see id. at 54--55 (step 2A-prong two); MPEP Â§ 2106.05(a}-( c ), ( e}-(h)). See Memorandum, 84 Fed. Reg. at 52-55. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that are not 5 Appeal2018-002142 Application 13/327,917 "well-understood, routine, conventional" in the field (see MPEP Â§ 2106.0S(d)); 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. See Memorandum, 84 Fed. Reg. at 56. Memorandum step 2A, prong one The Examiner determines that claim 1 's steps of generating a forecast, calculating a resource allocation proposal, calculating a recommendation to dispatch the at least one current task, comparing a current state of the first queue including the change in the state of the first queue and a current state of a second queue to the forecast to detect a mismatch and generate a reality-to-forecast divergence metric, refreshing the forecast to transform the forecast to an actualized forecast when the reality-to-forecast divergence metric exceeds a threshold value can be performed in the human mind or by a human using a pen and paper. Ans. 20. The Examiner's determinations are supported by the limitations of the method of claim 1, which includes steps for generating or calculating "a forecast of at least one task," "a resource allocation proposal for at least one current task," and "a recommendation to dispatch the at least one current task." The claimed method further recites steps for "dispatching ... the at least one current task," "comparing ... a current state of the first queue ... and a current state of a second queue to detect a mismatch and generate a reality-to-forecast divergence metric," "refreshing ... the forecast," and "dispatching ... at least one other task." Forecasting how resources (e.g., available personnel hours, building space, budgeted capital, etc.) will be 6 Appeal2018-002142 Application 13/327,917 affected in carrying out tasks, dispatching tasks, and monitoring the actual impact of the dispatched tasks on the resources are observation, evaluation, and judgment practices that can be carried out by the human mind, and, therefore, are mental processes that the Memorandum recognizes as abstract ideas. See Memorandum, 84 Fed. Reg. at 52. Appellant argues the "claimed features of 'dispatching automatically the at least one current task ... to the first queue' or 'dispatching automatically at least one other task' cannot be accomplished in the human mind or by a human using a pen and a paper." Reply Br. 7. Dispatching a task, however, encompasses merely instructing a human to perform a step (see Spec. ,r 2), and instructions can be provided manually using pen and paper (see id. ,r 5 ("documents are often queued into task queues")). Merely dispatching tasks automatically rather than manually does not suffice to make the claimed invention patent-eligible. See, e.g., Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017) ("mere automation of manual processes using generic computers does not constitute a patentable improvement in computer technology"). Appellant does not identify, nor are we able to ascertain, any other recitations that preclude carrying out the claimed steps in the human mind with the aid of pen and paper. Therefore, we agree with the Examiner that claim 1 is directed to mental processes that represent an abstract idea. See Memorandum, 84 Fed. Reg. at 52. The Examiner further determines that claim 1 is directed to fundamental economic practices [ representing] certain methods of organizing human activities." Final Act. 3. Appellant disputes this characterization. Appeal Br. 11-12; Reply Br. 5---6, 8-10. The Examiner's 7 Appeal2018-002142 Application 13/327,917 determinations showing that claim 1 is directed to an abstract idea in the form of mental processes is dispositive, however, with respect to this step in the analysis. Therefore, we do not address the Examiner's alternative characterization of claim 1, or Appellant's responses thereto. Memorandum step 2A, prong two Appellant further argues the Examiner's characterization of claim 1 is "is untethered from Appellant's specific implementation of a technical solution comprising, e.g., to calculate a resource allocation proposal, calculate a recommendation, compare a queue to a forecast, refresh the forecast, etc." Reply Br. 6. Rather, Appellant argues, claim 1 recites "a machine configured in a specific way that plays a significant part in permitting implementation." Id. at 14. Specifically, Appellant argues that claim 1 recites: Id. a processor dispatching automatically at least one current task in a business process management system under consideration of a recommendation and/or a processor dispatching automatically at least one other task in a business process management system under consideration of an actualized forecast, as claimed, recite a machine configured in a specific way that clearly plays a significant part in permitting the automatic dispatch of tasks in a BPMS [business process management system] under consideration of complex information such as a recommendation (e.g., calculated under consideration of a resource allocation proposal, that itself is calculated under consideration of a forecast and a current state of a first queue, and under consideration of an optimized plan including an evaluation of dependency between tasks) and an actualized forecast (e.g., based on a reality-to- forecast divergence metric exceeding a threshold value). These arguments are unpersuasive because Appellant relies on recitations that describe the underlying abstract idea (i.e., the mental 8 Appeal2018-002142 Application 13/327,917 process) discussed above. Additional recitations-such as the preamble recitation of a "processor" and the recitations for performing the claimed steps "automatically"----do not integrate the abstract idea into a practical application because these recitations merely recite the use of the processor as a tool or the use of a particular technological environment (i.e., one where the claimed steps are performed automatically rather than manually). See, e.g., Memorandum, 84 Fed. Reg. at 55; see also Credit Acceptance Corp., 859 F.3d at 1055. Appellant argues for the patent-eligibility of claim 1, by asserting "dispatching tasks in a BPMS does provide for improvement in a technical field of 'business process management.'" Appeal Br. 14. The Specification, however, discloses that "[b ]usiness process management (BPM) involves managing the workflow of information and documents inside a company or across different companies." Spec. ,r 2. Management of information and document workflow does not represent a "technical field," but is, instead, a basic business practice. Appellant's arguments regarding the claimed automatic dispatching of tasks more generally fail to show that the abstract idea of claim 1 is integrated into a practical application. See Reply Br. 7. As discussed above, dispatching a task encompasses providing instructions or queuing a document. Claim 1 fails to include any steps that include executing a dispatched task. Merely providing an instruction or queuing a document is an insignificant post-solution activity that "will not transform an unpatentable principle into a patentable process." See Diamond v. Diehr, 450 U.S. 175, 191-92 (1981); see also Parker v. Flook, 437 U.S. 584 (1978). 9 Appeal2018-002142 Application 13/327,917 Appellant argues that "dispatching automatically a current task to a first queue to change a state of the first queue, as claimed, trans! arms the first queue from one state to another state." Appeal Br. 16 (emphasis added). The claimed task dispatching by adding the task to a queue (but not performing the task), however, is similar to a patent-ineligible method of calculating and adjusting of an alarm limit value (i.e., to a process that changes or transforms the state of an alarm limit). See Flook, 437 U.S. 584 at 594--97; compare with Diehr, 450 U.S. at 192 (a process for curing synthetic rubber required "performing a function which the patent laws were designed to protect ( e.g., transforming or reducing an article to a different state or thing)"); see also Memorandum, 84 Fed. Reg. at 55. The only transformation evident in dispatching a task to a queue is the addition of the task to a generically claimed queue in a manner that does not, for example, "improve the way a computer stores and retrieves data in memory." Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016); see also Final Act. 4. Moreover, the task itself, even if executed, could be another insignificant post-solution activity that fails to make the claimed invention patent-eligible. For these reasons, we determine that claim 1 does not include additional recitations that integrate the patent-ineligible mental processes (i.e., the underlying abstract idea) into a practical application. Memorandum step 2B We agree with the Examiner that claim 1 "merely amounts to the application [ of] or instructions to apply the abstract idea (i.e. task forecasting and dispatching) on a computer, and is considered to amount to nothing more than requiring a generic computer system ( e.g. a generic processor) to 10 Appeal2018-002142 Application 13/327,917 merely carry out the abstract idea itself." Final Act. 4. Claim 1 includes a preamble recitation of a "processor" implementing the claimed steps. Implementing a method with Appellant's processor was a well-understood, routine, conventional activity, as evidenced by the Specification's broad disclosure that "computer program instructions may be provided to a processor of a general purpose computer, special purpose computer, or other programmable data processing apparatus." Spec. ,r 24. Thus, the "processor" preamble recitation fails to provide an inventive concept that makes the claimed invention significantly more than the underlying abstract idea. See Memorandum, 84 Fed. Reg. at 56. Appellant contends that the claim features, considered as a whole, "amount to significantly more than any ineligible concept itself." Appeal Br. 14. Specifically, Appellant argues that: [ s ]imilar to DDR Holdings[2J, Research Corp. [3J, Bas[]com[ 4J, and unlike Bilski v. Kappos, [561 U.S. 593] (2010), Applicant's claims recite how features are implemented in a functional and palpable way and are not so broad as to be directed to an abstract idea itself that preempts every possible way of performing the abstract idea. Id. at 15. Appellant's argument is unpersuasive because "[w]hile preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility," as "questions on preemption are inherent in and resolved by theÂ§ 101 analysis." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). 2 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). 3 Research Corp. Techs. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010). 4 BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). 11 Appeal2018-002142 Application 13/327,917 Furthermore, Appellant merely summarizes the holdings of several cases without showing that the cases support the patent-eligibility of claim 1 ( e.g., by showing that the recitations of claim 1 are comparable to the claim recitations in the cited cases). See Appeal Br. 14--15. Business process management that includes the dispatching of tasks in a manner that could be carried out by humans using pen and paper is not "necessarily rooted in computer technology in order to overcome a problem specifically arising in" a technical field because business process management, as noted above, is not a technical field such as computer networks. See DDR Holdings, 773 F.3d at 1257. Such business process management does not present "functional and palpable applications" in a technological field such as halftone rendering of gray scale images. See Research Corp., 627 F .3d at 868---69. Nor does such business process management represent a "particular arrangement of elements [that] is a technical improvement over prior art" methods. See BASCOM, 827 F.3d at 1350. Because claim 1 does not have additional limitations that make claim 1 significantly more than the underlying abstract idea, we sustain the Examiner's 35 U.S.C. Â§ 101 rejection of claim 1, as well as claims 2--4, 6, 8- 12, 14, and 16-23, which Appellant does not argue separately. See Appeal Br. 16-17. 35 U.S.C. Â§ 103(A) Claim 1 recites "calculating automatically a resource allocation proposal for at least one current task under concurrent consideration of the forecast and a current state of a first queue to which the at least one current task is to be dispatched and is not yet dispatched." The Specification discloses such calculation as mixed integer programming module 10 12 Appeal2018-002142 Application 13/327,917 calculating "an optimized resource allocation 12 for all currently available tasks under consideration of the current state of the queues 6 and the input flow forecast 10 of the [ auto regression integrated moving average] module 9." Spec. ,r 40 (cited in Appeal Br. 9). The Specification further discloses that "task dispatcher 8 is ... connected to the queues 6 and receives a state of the queues 6 as input information." Spec. ,r 38. McCord teaches a system for scheduling routing rules in a contact center based on forecast and actual interaction load and staffing requirements (McCord, Title) with features such as directing "callers to a different time for interacting with a live agent" based on limited agent availability (see id. col. 7, 11. 55-59) and refining software agent scheduling when real-time monitoring results "in a change in the predicted interaction load" (see id. col. 9, 11. 4--13). McCord further teaches an embodiment that includes "routing by the metrics of [ estimated wait time] and agent availability." Id. col. 8, 11. 11-12. In rejecting claim 1 as obvious, the Examiner finds that "assembling a strategy or modifying an existing strategy based on EWT ( estimated wait time) and agent availability to be calculating automatically a resource allocation proposal for at least one current task." Final Act. 7; see also Ans. 32. That is, the Examiner finds that McCord's routing teaches calculating automatically a resource allocation proposal for a least one current task, that McCord's use of estimated wait time teaches consideration of a forecast, and that McCord's McCord's agent availability teaches a current state of a first queue. Appellant contends the Examiner erred because "McCord merely teaches to create assignments for real agents at step 405 based on predicted 13 Appeal2018-002142 Application 13/327,917 interaction load statistics, irrespective of a current state of a queue." Appeal Br. 18 (citing McCord col. 9, 11. 4--15). Appellant argues that "agent availability is not a queue to which tasks are dispatched." Id.; see also Reply Br. 17-18. Appellant's arguments are unpersuasive because Appellant fails to distinguish the claimed "current state of a first queue" from the McCord's agent availability metrics. McCord specifically discloses interactions can be "dropped or go un-routed because of a resource availability problem." McCord col. 2, 11. 11-12. This is why McCord relies on received "statistics about forecast arrival rates and current resource availability data [to] schedule[] resources and routing rules according to the forecast requirements." Id. at col. 2, 11. 32-35. Because interactions are likely to be dropped if routed to agents who are unavailable, agent availability represents a current state of a queue. Therefore, we agree with the Examiner that McCord teaches or suggests the claimed "calculating automatically a resource allocation proposal" recited in claim 1. Claim 1 further recites "comparing automatically a current state of the first queue including the change in the state of the first queue and a current state of a second queue to the forecast." Rather than relying exclusively on McCord' s teachings, the Examiner finds that Stenning' s monitoring of an actual length of a physical queue to identify a significant discrepancy from the physical queue's expected length to teach or suggest the claimed comparison for a first queue. Final Act. 9 ( citing Stenning ,r 162); see also Ans. 34 (Stenning "teaches comparing the actual states of multiple queues to the forecasted state of the corresponding queues"). 14 Appeal2018-002142 Application 13/327,917 Appellant contends the Examiner erred because "Stenning merely teaches to periodically monitor the actual length of a physical queue (i.e., a line of people), and not to compare a current state of a first resource queue." Appeal Br. 19; see also id. at 20 (Stenning teaches away from Appellant claim 1 and "towards using a physical queue length for a service"). Appellant also argues "Stenning merely teaches to periodically monitor a line of people and not to compare a resource queue." Reply Br. 19. The Examiner relies on McCord, however, rather than on Stenning to teach the claimed first queue ( a resource queue). See, e.g., Final Act. 9. The Examiner relies on Stenning to teach or suggest the claimed comparison of a current state of a queue with a forecast. Id. ( citing Stenning ,r 162). Specifically, the Examiner relies on Stenning's comparison of an actual queue length to an expected queue length. See id. We agree with the Examiner that it would have been obvious to an artisan of ordinary skill to apply this teaching to other types of queues as a way to detect a mismatch between a current state of a queue and a forecast. See id. at 10. For these reasons, we agree with the Examiner that the combination of McCord and Stenning teaches or suggests the "comparing automatically" recitation of claim 1. Accordingly, we sustain the Examiner's 35 U.S.C. Â§ 103(a) rejection of claim 1, and the Examiner's 35 U.S.C. Â§ 103(a) rejections of claims 2--4, 6, 8-12, 14, and 16-23, which Appellant does not argue separately with respect to this issue. Appeal Br. 21. 15 Appeal2018-002142 Application 13/327,917 DECISION We affirm the Examiner's decision rejecting claims 1--4, 6, 8-12, 14, and 16-23. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 4I.50(f). AFFIRMED 16