Ex Parte Ponting et al

Patent Trial and Appeal Board

Apr 2, 2018

14301901 (P.T.A.B. Apr. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/301,901 06/11/2014
93379 7590
Setter Roche LLP
14694 Orchard Parkway
Building A, Suite 200
Westminster, CO 80023
04/04/2018
FIRST NAMED INVENTOR
Keith Ponting
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.
648.0121 1646
EXAMINER
MISHRA, RICHA
ART UNIT PAPER NUMBER
2673
NOTIFICATION DATE DELIVERY MODE
04/04/2018 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):
sarah@setterroche.com
pair_avaya@firsttofile.com
uspto@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEITH PONTING, REIN SIKVELAND,
and DAVID ZEITL YN
Appeal2017-007015
Application 14/301,901
Technology Center 2600
Before DENISE M. POTHIER, JUSTIN BUSCH, and
SCOTT B. HOWARD, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision to reject claims 1-20, which constitute all the claims
pending in this application. We have jurisdiction over the pending claims
under 35 U.S.C. § 6(b). We affirm.
CLAIMED SUBJECT MATTER
Appellants' invention is generally directed to "systems, methods, and
computer readable media for analyzing a conversation between a plurality of
participants." Spec. i-f 3. Appellants' claimed invention identifies at least
two speakers from a plurality of participants, determines turns (i.e., portions
of the conversation when a respective speaker is speaking) for each speaker,
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determines statistics for at least some of the determined turns, and identifies
conversation phases based on the determined statistics. Spec. i-fi-13, 26-27.
Claims 1, 11, and 20 are the independent claims. Claim 1 is illustrative and
reproduced below:
1. A method of analyzing a conversation between a plurality
of participants, comprising:
accessing stored digital audio information of audio
captured from the plurality of participants by one or more
communication devices during the conversation;
in processing circuitry that processes the stored digital
audio information:
determining a first speaker from the plurality of
participants and determining a second speaker from the
plurality of participants;
determining a first plurality of turns comprising
portions of the conversation when the first speaker is
speaking;
determining a second plurality of turns comprising
portions of the conversation when the second speaker is
speaking;
determining per-tum statistics for turns of the first
and second pluralities of turns; and
identifying phases of the conversation based on the
per-tum statistics and generating phase information that
includes a start time and an end time within the
conversation for each one of the phases.
REJECTIONS
Claim 20 stands rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter. Final Act. 4.
Claims 1-20 stand rejected under 35 U.S.C. § 101 as being directed to
ineligible subject matter. Final Act. 3--4.
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Claims 11-13 and 15-20 stand rejected under 35 U.S.C. § 102(a)(l)
as anticipated by Pereg (US 2011/0307257 Al; Dec. 15, 2011). Final Act.
7-9.
Claims 1-3, and 5-10 stand rejected under 35 U.S.C. § 103 as obvious
in view of Pereg and Chen (US 2013/0121580 Al; May 16, 2013). Final
Act. 5-7.
Claim 4 stands rejected under 35 U.S.C. § 103 as obvious in view of
Pereg, Chen, and Costello (US 2010/0166158 Al; July 1, 2010). Final Act.
9-10.
Claim 14 stands rejected under 35 U.S.C. § 103 as obvious in view of
Pereg and Costello. Final Act. 10.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments Appellants made.
Arguments Appellants could have made, but chose not to make in the Briefs,
have not been considered and are deemed waived. See id.
THE § 101 REJECTIONS
NON-STATUTORY SUBJECT MATTER REJECTION
The Examiner concludes claim 20 is directed to non-statutory subject
matter because it claims a "computer readable storage medium," which may
include both statutory (non-transitory) and non-statutory (transitory) subject
matter. Final Act. 4; Ans. 6. Appellants do not address the Examiner's
rejection of claim 20 as directed to non-statutory subject matter and,
accordingly, have not argued that the Specification supports a narrower
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construction of the recited phrase to exclude transitory media. Accordingly,
on this record, we summarily affirm the Examiner's rejection of claim 20
under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
JUDICIALLY EXCEPTED SUBJECT MATTER REJECTION
The Examiner concludes claims 1-20 are directed to judicially
excepted subject matter. Final Act. 3--4; Ans. 12-14. In particular, the
Examiner finds the claims merely recite steps involved in identifying phases
in a conversation and concludes, therefore, the claims are directed to an
abstract idea. Final Act. 3. The Examiner also concludes the particular
elements recited in the claims are merely generic software code performing
generic, well-understood, and routine functions and activities known to the
industry, without imposing sufficient meaningful limitations to transform the
abstract idea into patent-eligible subject matter. Id. at 4; Ans. 13. The
Examiner finds the claims are more similar to those found ineligible by the
Federal Circuit, rather than the claims found eligible in Enfzsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1336-38 (Fed. Cir. 2016). Ans. 13-14
(citing Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d
1363 (Fed. Cir. 2015); Digitech Image Techs., LLC v. Elecs.for Imaging,
Inc., 758 F.3d 1344 (Fed. Cir. 2014)).
Alice/Mayo Framework
The Patent Act defines patent-eligible subject matter broadly:
"Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title." 35 U.S.C. § 101. There is no dispute that claims
1-19 are directed to one of these categories. Although we summarily affirm
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the rejection of claim 20 as directed to non-statutory subject matter, because
amending claim 20 to recite only "non-transitory" media may suffice to limit
the scope of claim 20 to statutory subject matter and because claim 20
otherwise recites substantially the same subject matter as claims 1 and 11,
we include claim 20 in the following analysis.
In Mayo Collaborative Services v. Prometheus Laboratories, Inc.,
566 U.S. 66, 70 (2012), and Alice Corp. Pty. Ltd. v. CLS Bank International,
134 S. Ct. 2347, 2354 (2014), the Supreme Court explained that§ 101
"contains an important implicit exception" for laws of nature, natural
phenomena, and abstract ideas. See Diamond v. Diehr, 450 U.S. 175, 185
(1981 ). In Mayo and Alice, the Court set forth a two-step analytical
framework for evaluating patent-eligible subject matter: (1) "determine
whether the claims at issue are directed to" a patent-ineligible concept, such
as an abstract idea; and, if so, (2) "consider the elements of each claim both
individually and 'as an ordered combination' to determine whether the
additional elements" add enough to transform the "nature of the claim" into
"significantly more" than a patent-ineligible concept. Alice, 134 S. Ct.
at 2355 (quoting Mayo, 566 U.S. at 79); see Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016).
Step one in the Mayol Alice framework involves looking at the "focus"
of the claims at issue and their "character as a whole." Elec. Power Grp.,
LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). Step two
involves the search for an "inventive concept." Alice, 134 S. Ct. at 2355;
Elec. Power, 830 F.3d at 1353. For an inventive concept, "more is required
than 'well-understood, routine, conventional activity already engaged in"'
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by the relevant community. Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc.,
827 F.3d 1042, 1047 (Fed. Cir. 2016) (quoting Mayo, 566 U.S. at 79--80).
Step One of Alice Framework
Turning to step one of the Alice framework, the Examiner finds the
claims merely recite steps involved in identifying phases in a conversation
and concludes, therefore, the claims are directed to an abstract idea. Final
Act. 3. The Examiner finds Appellants' claims are similar to the claims in
Intellectual Ventures and Digitech, which were found to be directed to
abstract ideas. Ans. 13-14 (citing Intellectual Ventures, 792 F.3d 1363;
Digitech, 758 F.3d at 1344).
Appellants argue the claims recites a technological improvement
because the claimed solution to identifying conversation phases requires less
processing than conversation phase identification using speech recognition.
App. Br. 7 (citing Enfzsh, 822 F.3d at 1335). Specifically, Appellants assert
the claims are directed to "an improvement in the art of determining phases
of a captured conversation."
We agree with the Examiner that claim 1, as a whole, is directed to
collecting information, recognizing or identifying other data within the
received information, and organizing information through mathematical
correlations. Ans. 13. The Federal Circuit has "treated collecting
information, including when limited to particular content (which does not
change its character as information), as within the realm of abstract ideas."
Elec. Power, 830 F.3d at 1353-54 (emphasis added) (finding collecting,
analyzing, and displaying information, regardless of particular content, is an
abstract idea); Content Extraction, 776 F.3d at 1347 (finding collecting,
recognizing, and storing information is an abstract idea); Digitech, 758 F.3d
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at 13 5 0 ("The method in the '415 patent claims an abstract idea because it
describes a process of organizing information through mathematical
correlations and is not tied to a specific structure or machine."); see also
Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348--49
(Fed. Cir. 2015); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363
(Fed. Cir. 2015).
In Enfzsh, the Federal Circuit found the self-referential table recited in
the claims was a new data structure; on the other hand, Appellants' claims
merely recite using known speaker recognition techniques and identifying
phases based on statistics about the speakers' turns in the conversation.
Appellants' claims are thus directed to automating a conversation phase
identification process, which Appellants acknowledge is something that a
person can do, just allegedly not as quickly (or for the same volume of
conversations) as when using Appellants' claimed invention. See Spec. i-f 1.
For the above reasons, we are unpersuaded the Examiner erred in
concluding the claims are directed to an abstract idea.
Step Two of Alice Framework
Next, we tum to step two of Alice to determine whether the
limitations, when considered both "individually and 'as an ordered
combination"' contain an "inventive concept" sufficient to transform the
claimed "abstract idea" into a patent-eligible application. Alice, 134 S. Ct. at
2355-58. The Examiner finds the claims merely recite generic software
performing generic functions without imposing meaningful limits on the
claimed subject matter. Final Act. 4; Ans. 13. Thus, the Examiner
concludes the claims do not recite significantly more than the abstract idea
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itself sufficient to transform the claim into a patent-eligible invention. Final
Act. 4; Ans. 13.
Appellants argue only that the claims are not directed to an abstract
idea and do not assert claims recite significantly more than the abstract idea
itself. App. Br. 7-8; Reply Br. 2. Appellants' claims merely recite
accessing an audio recording, identifying speakers within the recording,
determining speakers' turns and statistics associated with those turns,
identifying conversation phases, and generating start and stop times for each
identified phase.
Appellants' steps are nothing more than the routine use of a
conventional computer. See Enfzsh, 822 F.3d at 1335-36 ("[T]he first step
... asks whether the focus of the claims is on the specific asserted
improvement in computer capabilities ... or, instead, on a process that
qualifies as an 'abstract idea' for which computers are invoked merely as a
tool."); see also Alice, 134 S. Ct. at 2358-59. Here, the focus of the claims
is not on an improvement in computers as tools or upon an innovative way
to use computers or other devices, but is focused on an independently
abstract idea that uses generic and routine steps as tools.
More specifically, Appellants' claims utilize generic computing
hardware to perform a human function-i.e., identifying phases of a
conversation by analyzing the conversation. See Spec. i-f 1 ("Such
information may be easily obtainable for a conversation by a human
listening to the conversation. However, the number of conversations
handled by the call center makes human analysis of every conversation
unachievable."). Improving the speed at which a process can be done by
automating that process does not render an ineligible subject matter eligible.
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See OIP Techs., 788 F.3d at 1363 ("[R]elying on a computer to perform
routine tasks more quickly or more accurately is insufficient to render a
claim patent eligible."); see also Intellectual Ventures, 792 F.3d at 1370
("[O]ur precedent is clear that merely adding computer functionality to
increase the speed or efficiency of the process does not confer patent
eligibility on an otherwise abstract idea.").
The fact that the recited process and systems can more efficiently
perform a human process does not improve a computer or technology, but
rather improves the process itself. See Gottschalk v. Benson, 409 U.S. 63,
66 (1972) (explaining that the claimed steps could easily "be carried out in
existing computers long in use, no new machinery being necessary.").
Accordingly, the claimed limitations, considered both individually and
together, do not add significantly more to the abstract idea and, therefore, do
not render the subject matter patent eligible.
Summary
For the above reasons, Appellants have not persuaded us the
Examiner erred in rejecting claims 1-20 under 35 U.S.C. § 101 as being
directed to merely an abstract idea, rendering the claimed subject matter
ineligible.
THE§§ 102 AND 103 REJECTIONS
The Examiner finds Pereg discloses every limitation recited in claims
11-13 and 15-20. Final Act. 7-9 (citing Pereg i-fi-19-10, 28-31, 34, 83-86,
91-95, Figs. 1, 4, 6). The Examiner finds Pereg discloses every limitation
recited in claims 1-3, and 5-10, except for the generating phase information
recited in claim 1 and the additional limitations recited in claim 8, all of
which the Examiner finds Chen teaches or suggests. Id. at 5-7. Finally, the
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Examiner finds Costello teaches the additional limitations recited in claims 4
and 14. Id. at 9-10. Of particular note with respect to the independent
claims, the Examiner finds Pereg' s identification of certain features of an
interaction, or a segment thereof, disclose the recited steps of "determining
per-tum statistics" and "identifying phases of the conversation based on the
per-tum statistics." Id. at 5. More specifically, the Examiner finds Pereg's
"average customer activity; average interaction; [and] average agent talk"
disclose the recited per-tum statistics and Pereg's "silence time, talk time,
etc." disclose the recited phases of a conversation. Id. (citing Pereg i-fi-19-10,
34, 83-86, 93).
Pereg discloses "obtaining business insights" using a "method and
system [used in call centers] for indicating in real time that an interaction is
associated with a problem or issue." Pereg, i-f l, Abstract. Exemplary
scenarios for which Pereg may be used to obtain business insight include
fraud detection, "unsatisfied customers which do not immediately leave the
organization but may do so when the opportunity presents itself, sales
interactions in which some help from a supervisor can make the difference
between success and failure, or similar cases." Id. i-fi-1 4--5. Pereg refers to
conversations between a representative of a business entity and "customers,
users, suppliers or other persons" as "interactions." Id. i12.
Pereg captures interactions and may break interactions into shorter
segments of a certain length of time in order to provide real time indications.
Pereg i132. Pereg captures interactions and extracts various information in
real time while the interaction is occurring, including feature vectors "for
every predetermined time frame" (i.e., for segments of the interaction). Id.
i1 21. Pereg uses that information to classify the interaction or segment,
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which essentially identifies whether or not there is a "problem" that the
organization wants to identify. Id. i-fi-131-32, 43.
Among other arguments, Appellants contend Pereg does not disclose,
teach, or suggest "identifying phases of the conversation based on the per-
tum statistics," as recited in the claims. App. Br. 8. Specifically, Appellants
argue Pereg's determined metrics are not phases of a conversation, and the
Examiner provides no explanation regarding how Pereg' s silence time and
talk time (i.e., Pereg's metrics the Examiner finds disclose the recited
conversation phases) are determined from Pereg's customer activity, average
interaction, and average agent talk (i.e., Pereg's metrics the Examiner finds
disclose the recited per-tum statistics). Id. Appellants assert an ordinarily
skilled artisan would not consider Pereg' s metrics to be conversation phases.
Id. (citing Chen i-f 103). Rather, Appellants contend, Pereg's metrics are
simply numerical values which are not equivalent to phases, let alone phases
of a conversation between two people. Id.
The Examiner responds by stating that Appellants' Specification is
open-ended, providing only examplary phases, which include "identifying
the customer and the agent" and "prompt." Ans. 15 (citing Spec. i-fi-142, 57,
59, Fig. 5). The Examiner also finds, as an example, "phase 1 can
correspond[] to customer speaking, then a[ n] agent speaking, that's a tum
between customer and agent" and because "Pereg also mention[ s] average
customer speaking time and average agent speaking time, that's based on
per-tum since there is a tum between customer and agent, or they both are
speaking at the same time." Ans. 15-16.
Appellants' Specification describes four exemplary phases of a
conversation: greeting, identification, main, and closing. Spec. i-fi-157-58.
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Similarly, Chen describes six exemplary phases of a conversation (two of
which are identical and one that is synonymous): greeting, verification,
question, back-end interaction, answering, and closing. Chen i-f 103.
Appellants' Specification also describes that other phases "may include the
various prompts and spoken responses in an interactive voice response
(IVR) system before the customer and the agent are connected or after they
are disconnected" but, contrary to the Examiner's implication, does not
disclose that a "prompt" is a particular phase. Spec. i-f 42. Even if the
portion of an interaction prior to the customer and agent are connected, or
some portion thereof, is identified as a "prompt" phase, that is consistent
with Appellants' and Chen's other examples regarding distinct portions of a
conversation (e.g., greeting, identification or authorization, main, closing).
See Spec. i-fi-157-59.
Based on our review, Pereg does not contemplate identifying
particular phases of the conversation because it is not dependent on
identifying phases to perform its functions of identifying features of the
interaction that may indicate a potential "problem." Pereg analyzes
segments of interactions in order to provide real time indications, but the
length of each segment is based on a determined amount of time, not on a
particular speaker speaking or a phase of the call. Thus, we agree with
Appellants that the Examiner has not demonstrated that Pereg discloses
"identifying phases of the conversation," as recited in the claims because we
see nothing in the Pereg' s cited portions, or elsewhere, that is equivalent to a
phase of a conversation, as would have been understood by a person of
ordinary skill in the art.
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Moreover, even assuming Pereg's statistics the Examiner cites
disclose the recited per-tum statistics, the Examiner's explanation does not
address Appellants' contention that the statistics the Examiner maps to the
conversation phases (i.e., silence time and talk time, Final Act. 5, or average
customer speaking time and average agent speaking time, Ans. 15-16) are
based on per-tum statistics, as recited in the claims. In addition to lacking
clarity regarding the particular aspects in Pereg allegedly disclose a "phase
of the conversation," the Examiner's explanation that "there is a tum
between a customer and an agent, or they are both speaking at the same
time" fails to clearly identify on which statistic(s) the Examiner finds a
determination of any conversation phase is based. See Ans. 15-16.
For the reasons discussed above, we are persuaded the Examiner erred
in rejecting claims independent claims 11 and 20, which recite "identify[ing]
phases of the conversation based on per-tum statistics," and claims 12, 13,
and 15-19, which depend from claim 11, as anticipated by Pereg.
Accordingly, we do not sustain the Examiner's rejection of claims 11-13
and 15-20 under 35 U.S.C. § 102(a)(l). The Examiner relies on the same
portions of Pereg for disclosing the commensurate limitation in independent
claim 1. Therefore, for similar reasons, we also do not sustain the
Examiner's rejection of independent claim 1, claims 2-9, which depend
therefrom, and claim 14, which depends from claim 11, as obvious in view
of Pereg and Chen, or Pereg, Chen, and Costello.
DECISION
We affirm the Examiner's decision to rejection claim 20 as directed to
non-statutory subject matter under 35 U.S.C. § 101.
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We affirm the Examiner's decision to rejection claims 1-20 as
directed to ineligible subject matter under 35 U.S.C. § 101.
We reverse the Examiner's decision to reject claims 1-20 under
35 U.S.C. §§ 102(a)(l) and 103.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R.
§ 41.50(a)(l).
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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