Ex Parte Stearns

Patent Trial and Appeal Board

Sep 4, 2018

12636804 (P.T.A.B. Sep. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/636,804 12/14/2009
49443 7590 09/06/2018
Pearl Cohen Zedek Latzer Baratz LLP
1500 Broadway
12th Floor
New York, NY 10036
FIRST NAMED INVENTOR
William Nathan Stearns
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.
P-79278-US 2084
EXAMINER
SCHEUNEMANN, RICHARD N
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
09/06/2018 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):
USPTO@PearlCohen.com
Arch-USPTO@PearlCohen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM NATHAN STEARNS
Appeal2017-002450
Application 12/636,804 1
Technology Center 3600
Before THU A. DANG, JAMES R. HUGHES, and SCOTT E. BAIN,
Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Non-Final Rejection of claims 1-5, 7-9, 11-14, and 16-20, which constitute
all claims pending in the application. Claims 6, 10, and 15 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies IEX Corporation and NICE-Systems Ltd. as the real
parties in interest. App. Br. 1.
Appeal2017-002450
Application 12/636,804
STATEMENT OF THE CASE
The Claimed Invention
The claimed invention relates to workforce management and,
specifically, forecasting and scheduling when a task's ("work item's")
average handling time ("AHT") is longer than the work interval( s) of the
applicable workers. Spec. 1. Claims 1, 11, and 12 are independent. Claim 1
is illustrative of the invention and the subject matter of the appeal, and reads
as follows:
1. A computer-implemented method for determining staff
distribution for a workforce management (WPM) system:
for a statistics interval defined by the workforce
management system and in a forecast range, wherein the given
statistics interval is insufficient to account for given work items
that temporally cross from one statistics interval into at least
one or more following statistics intervals because a forecast
average handling time (AHT) for a given work item is greater
than or equal to a statistics interval length, or because the work
item is forecast to arrive late in the given statistics interval and
cannot be completed before the given statistics interval ends:
determining, by a processor, a total number of
work items in progress, wherein the total number of work
items in progress is based in part on work that continues
from one or more prior statistics intervals;
for the given statistics interval, determining, by the
processor, staff required based on the total number of
work items in progress; and
transmitting, by the processor, the staff required to
a display.
App. Br. 9 (Claims App.) ( emphasis added).
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Application 12/636,804
The Rejections on Appeal
Claims 1-5, 7-9, 11-14, and 16-20 are rejected under 35 U.S.C.
§ 101 as directed to patent-ineligible subject matter. Final Act. 5---6.
Claims 1, 5, 7-9, 11-14, 16, and 20 stand rejected under pre-AIA
35 U.S.C. § I03(a) as being unpatentable over Adhikari et al. (US 7,222,082
Bl; May 22, 2007) ("Adhikari") and Castonguay et al. (US 5,911,134; June
8, 1999) ("Castonguay"). Final Act. 7-17.
Claims 2--4 stand rejected under pre-AIA 35 U.S.C. § I03(a) as being
unpatentable over Adhikari, Castonguay, and Chee et al. (US 6,526,397 B2;
Feb. 25, 2003) ("Chee"). Final Act. 17-19.
Claims 17-19 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Adhikari, Castonguay, and Schoenberger et al. (US
7,382,773 B2; June 3, 2008) ("Schoenberger"). Final Act. 19-22.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments presented in this appeal. Arguments which Appellant could have
made but did not make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv). On the record before us, we are not persuaded the
Examiner erred. We adopt as our own the findings and reasons set forth in
the rejections from which the appeal is taken and in the Examiner's Answer,
and provide the following discussion for highlighting and emphasis.
Rejection Under 35 USC§ 101
Appellant argues the Examiner erred in rejecting the claims as
directed to ineligible subject matter, namely, the abstract idea of determining
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Application 12/636,804
staff distribution in a workforce. 2 App. Br. 7; Reply Br. 2-3; Final Act. 5.
Appellant contends the claims are not abstract because the claims solve a
problem rooted in computer technology, namely, "the scheduling is done by
a computer [and] computers require discrete time intervals [whereas] a
human does not need to work in discrete time intervals." Reply Br. 2; see
also App. Br. 6-7. Appellant's arguments, however, do not persuade us of
error.
Section 101 of the Patent Act provides "[ w ]hoever 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. The Supreme Court has long held that this
provision contains an implicit exception: "[l]aws of nature, natural
phenomena, and abstract ideas are not patentable." Alice Corp. Pty. v. CLS
Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor Molecular
Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013)). The Court has
set forth a two-part inquiry to determine whether this exception applies.
First, we must "determine whether the claims at issue are directed to one of
those patent-ineligible concepts." Alice, 134 S. Ct. at 2355. Second, if the
claim is directed to one of those patent-ineligible concepts, we consider "the
elements of each claim both individually and 'as an ordered combination' to
determine whether the additional elements 'transform the nature of the
claim' into a patent-eligible application." Alice, 134 S. Ct. at 2355 (quoting
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1297
2 Appellant argues the claims as a group, and we choose claim 1 as
representative. 37 C.F.R. § 4I.37(c)(iv).
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(2012)). Put differently, we must search the claims for an "inventive
concept," that is, "an element or combination of elements that is 'sufficient
to ensure that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself."' Alice, 134 S. Ct. at 2355
(quoting Mayo, 132 S. Ct. at 1294).
Regarding step one of the Alice analysis, as the Examiner observes,
Appellant's claims recite steps for using data to determine staff distribution,
including acquiring, manipulating, and reporting such data. Non-Final Act.
6. Claims involving data collection, analysis, and display are directed to an
abstract idea. Elec. Power Grp. 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"); see also In re TL! Commc 'ns LLC
Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016).
Although Appellant's claims require use of a computer, we are not
persuaded by Appellant's argument that the claims are directed to a problem
rooted in computer technology, as was the case in DDR. Reply Br. 3 ( citing
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014).
Here, in contrast to DDR, no claim limitations are directed to any means or
method that improves a processor, computer, memory, network, or other
computer element. Rather, the claims recite steps supplementing a
mathematical process of scheduling, with a computer to make calculations.
Ans. 3.
Accordingly, we are not persuaded the Examiner erred under step one
of Alice, and we proceed to step two.
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In the second step of our analysis under Alice,
we must examine the elements of the claim to determine
whether it contains an "inventive concept" sufficient to
"transform" the claimed abstract idea into a patent-eligible
application. A claim that recites an abstract idea must include
"additional features" to ensure "that the [claim] is more than a
drafting effort designed to monopolize the [abstract idea]."
Alice Corp., 134 S. Ct. at 2357 (internal citations omitted). Appellant
does not identify any specific error under step two of Alice. As discussed
above, Appellant conflates the claims' use of a computer with an invention
rooted in computer technology, and we are not persuaded for the reasons
discussed above.
Appellant also briefly asserts, without further explanation, that the
claims are analogous to those found patent-eligible in Bascom. Reply Br. 3
(citing Bascom Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016). We, however, find Appellant's claims are dissimilar
to the claims at issue in Bascom, which were directed to technical
improvements in a computer or network. See Bascom, 827 F.3d at 1350
("hamess[ing] this technical feature of network technology in a filtering
system" to customize content filtering); see also McRO, Inc. v. Bandai
Namco Games Am. Inc., 837 F.3d 1299, 1315 (Fed. Cir. 2016)
("improvement in computer animation," for "achieving automated lip-
synchronization"). Appellant's invention, in contrast, is performed by
standard, generic data processing and storage elements. See supra. The use
of such generic computing elements "do[ es] not alone transform an
otherwise abstract idea into patent-eligible subject matter." FairWarning,
839 F.3d at 1096 (Fed. Cir. 2016) (citing DDR Holdings, LLC, v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)); Ans. 3.
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For the foregoing reasons, we are not persuaded the Examiner erred.
We sustain the rejection of claims 1-5, 7-9, 11-14, and 16-20 as directed to
ineligible subject matter.
Rejection Under 35 USC§ 103
Appellant argues the Examiner erred in finding the prior art teaches or
suggests "determining ... a total number of work items in progress, wherein
the total number of work items in progress is based in part on work that
continues from one or more prior statistics intervals," as recited in claim 1. 3
App. Br. 4---6 ( emphasis added). Specifically, Appellant argues the
Examiner relies on Castonguay as teaching this limitation, but Castonguay
"teaches that scheduling is to be done in discrete intervals, [not] work that
continues across one or more prior statistics intervals." Id. at 5. Appellant's
arguments, however, do not persuade us of error.
As the Examiner finds, Castonguay teaches a system for workflow
forecasting and management. Ans. 2; Non-Final Act. 7-8. Castonguay
provides that during a "work shift," a management system monitors
"statistics concerning incoming calls" and the "activities of agents in
responding to those calls." Castonguay col. 7, 11. 16-35. The system may
process data "based [o]n thirty (30) minute intervals," and the "revised data
is then used [to] generate forecast[s]." Castonguay col. 7, 11. 21-33. The
forecasts in tum generate staffing requirements. Id. at col. 7, 11. 35-37.
Accordingly, we agree with the Examiner's finding that Castonguay teaches
the disputed limitation.
3 Appellant argues the claims as a group, and we choose claim 1 as
representative. 37 C.F.R. § 4I.37(c)(iv).
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Appellant contends that Castonguay does not teach the recited
"intervals," and specifically, work that "continues from [across] one or more
prior statistics intervals." App. Br. 5. Appellant, however, appears to be
relying on an overly narrow interpretation of "intervals." As defined in
Appellant's Specification, an "interval" is an "arbitrary time period,
typically 15 minutes, 30 minutes, 60 minutes, or the like, although shorter or
longer intervals are contemplated as well." Spec. 6. Accordingly, an
interval as recited in Appellant's claims could be any period of time. In re
Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (claim
terms given their "their broadest reasonable interpretation consistent with the
specification"). As the Examiner finds, just because Castonguay teaches
scheduling in discrete intervals does not mean those are the only relevant
work (statistics) intervals - a statistics interval (in the context of claim 1)
could be any period of time during which a staff member in Castonguay is
working, and thus that staff member's work continues "across" intervals.
Ans. 2.
Accordingly, we are not persuaded the Examiner erred. For the
foregoing reasons, we sustain the obviousness rejections of claims 1-5, 7-9,
11-14, and 16-20.
DECISION
We affirm the Examiner's decision rejecting claims 1-5, 7-9, 11-14,
and 16-20.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See 37
C.F.R. § 4I.50(a)(l).
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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). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
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