QUALTRICS, LLC

Patent Trials and Appeals BoardDec 27, 2021

2020006100 (P.T.A.B. Dec. 27, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/620,462 06/12/2017 Ali BaderEddin 20055.515 1169 151970 7590 12/27/2021 Keller Jolley Preece / Qualtrics 1010 North 500 East Suite 210 North Salt Lake, UT 84054 EXAMINER TORRES, MARCOS L ART UNIT PAPER NUMBER 2647 NOTIFICATION DATE DELIVERY MODE 12/27/2021 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): docketing@kjpip.com kpreece@kjpip.com ljohnson@kjpip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALI BADEREDDIN, HONGYI GAO, MARK CHEN-YOUNG WU, ALI HYDER, JEFFREY ANGELL, KYLE SEELY, CAMERON HOLIMAN, MICAH ARVEY, ARAVIND ALURI, ANDERSON QUACH, and BEN ALTON _____________ Appeal 2020-006100 Application 15/620,462 Technology Center 2600 ____________ Before ST. JOHN COURTENAY III, CATHERINE SHIANG, and NORMAN H. BEAMER, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of 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 reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, the real party in interest in this appeal is “Qualtrics, LLC.” See Appeal Br. 1. Appeal 2020-006100 Application 15/620,462 2 STATEMENT OF THE CASE 2 Introduction Embodiments of Appellant’s claimed subject matter relate generally to the secure management of attachments. See Abstract. Illustrative Claim 1 1. A method comprising: receiving, from a survey administrator client device, a digital survey question comprising user-provided text and corresponding to a digital survey to be administered to at least one respondent; [L1] determining a question type of the digital survey question by analyzing the user-provided text using at least one processor to identify key terms and a sentence structure that indicate the question type; [L2] matching a natural language phrase to the question type by identifying a stored natural language phrase that corresponds to the question type from within a natural language phrase database, wherein the natural language phrase comprises conversational language corresponding to the question type of the digital survey question; [L3] generating a modified digital survey question by combining the natural language phrase with one or more of the key terms identified from the user-provided text; distributing the modified digital survey question to a respondent by sending the modified digital survey question to a voice transcription service, wherein sending the modified digital survey question to the voice transcription service causes the voice transcription service to convert the modified digital survey question into an audio survey question and provide the 2 We herein refer to the Final Office Action, mailed December 13, 2019 (“Final Act.”); the Appeal Brief, filed May 12, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed July 21, 2020, and the Reply Brief, filed August 25, 2020 (“Reply Br.”). Appeal 2020-006100 Application 15/620,462 3 audio survey question to a voice-capable device of the respondent; receiving, from the voice transcription service and in relation to the audio survey question, a transcription of a verbal response of the respondent; and analyzing, by the at least one processor, the transcription of the verbal response to generate a survey result for the digital survey question. Appeal Br. 21, Claims App. (disputed claim limitations L1, L2, and L3 bracketed and emphasized). Prior Art Evidence Relied Upon by the Examiner Name Reference Date Meyer et al. (“Meyer”) US 2011/0137709 A1 June 9, 2011 Boguraev et al. (“Boguraev”) US 2016/0062980 A1 Mar. 3, 2016 Vancho US 2016/0335399 A1 Nov. 17, 2016 Rejection Claims Rejected 35 U.S.C. § Reference(s)/Basis 1–20 103 Meyer, Vancho, Boguraev Appeal 2020-006100 Application 15/620,462 4 ISSUES AND ANALYSIS We have considered all of Appellant’s arguments and any evidence presented. Throughout this opinion, we give the claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We highlight and address specific findings and arguments for emphasis in our analysis below. Rejection of Independent Claim 1 Although Appellant disputes the Examiner’s factual findings regarding each of the claim 1 steps L1, L2, and L3, based upon our review of the record, we find limitation L1 is dispositive to this appeal: [L1] determining a question type of the digital survey question by analyzing the user-provided text using at least one processor to identify key terms and a sentence structure that indicate the question type; Claim 1 (emphasis added). 3 We note the Examiner reads the “determining” step L1 on paragraph 57 of Meyer. See Final Act. 5. Appellant advances several related arguments regarding the disputed dispositive “determining” step L1 of method claim 1. 3 Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments. See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an administrative agency is at liberty to reach a decision based on “a single dispositive issue”). Appeal 2020-006100 Application 15/620,462 5 In particular, Appellant contends: In the cited portion, Meyer describes recording a survey script read by a professional speaker. See Meyer at [0057]. Meyer’s description of recording a spoken survey script is, in a sense, incompatible with the analysis of the above limitation. Indeed, if the system described in Meyer already records a question spoken by a professional speaker, then the claimed concept of transforming the question into a more natural, conversational version for playing over voice capable devices is either redundant or superfluous. To be sure, the system in Meyer has no practical reason to convert a text-based question to an audio question if the initial question is already in audio form—i.e., recorded from a professional speaker. Thus, not only does Meyer not describe determining a question type by analyzing the text of the question to identify key terms and sentence structure, but the idea of doing so is inapposite with Meyer’s system. Appeal Br. 10–11 (emphasis added). Turning to the evidence, the Examiner reproduces paragraph 57 of Meyer on page 4 of the Answer: The survey assembling module 62 is configured to record a survey script read by a professional speaker. The survey assembling module 62 can record the read script in digitized form in a way file, vox file, and/or other audio file formats. A file naming convention can be used to help identify the properties of the survey scripts. For example, the file name may include an indication of the client, product, types of services, spoken language, store brand, and/or other information. When the scripts are recorded, the survey assembling module 62 enables a user to select different scripts to combine into a complete survey. In this respect, each script may be a single question, single statement, or other portion of an entire survey. The user may then arrange the selected scripts in a particular order. Also, the user is enabled to enter acceptable answers for each of the survey questions. Appeal 2020-006100 Application 15/620,462 6 Ans. 4 (quoting Meyer ¶ 57) (emphasis added by Examiner). The Examiner further explains the basis for the rejection over Meyer (¶57), and adds new citations to Vancho (¶ 11) and Boguraev (¶¶ 16, 106, 107): As seen above, [Appellant’s] argument is overlooking the fact that the speaker is reading [read is defined as: look at and comprehend the meaning of (written or printed matter) by mentally interpreting the characters [text] or symbols of which it is composed] before recording the spoken words; [T]herefore, Meyer has a practical reason to convert a text- based question to an audio question because the initial question has to be read. Please note that court held that broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. (In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958)). Additionally, the secondary references disclose that the questions can come from a plurality of sources such as voice or text, see par. 0011 of Vancho and par. 0016 of Boguraev; therefore, the conversion is that case is not manual but automatic. As to the argument that Meyer not describe determining a question type by analyzing the text of the question to identify key terms and sentence structure; the examiner's position is that all references are required to do the above, for example in Meyer is required in order to enable acceptable answers as seen in the same paragraph above and in Boguraev to improve the question (see par. 0106-0107) which will be addressed below. Ans. 5 (emphasis added). Appellant disagrees with the Examiner’s explanation in the Reply Brief: Meyer describes properties such as an indication of a client, a product, types of services, a spoken language, or a store brand. See Meyer at [0057]. Even ignoring the context provided in the Specification regarding a question type, Appellant submits that, Appeal 2020-006100 Application 15/620,462 7 even in a vacuum, one of ordinary skill in the art could not read Meyer’s explanation of survey script properties, in paragraph [0057] or elsewhere, to include a question type. Indeed, nothing in paragraph [0057] nor any other paragraph of Meyer describes a question type in any context or based on any general understanding of what the term “question type” would mean to one of ordinary skill in the art, much less in the context provided by the Specification . . . As further laid out in the Appeal Brief, Vancho and Boguraev fail to remedy the deficiencies of Meyer. Like Meyer, neither of these other references mentions nor alludes to a question type akin to that of Appellant's claims, much less to determining such a question type based on identifying key terms and a sentence structure. For at least these reasons, Appellant respectfully submits that the Office Action has failed to establish a prima facie case of obviousness and requests reversal of the rejections under 35 U.S.C. § 103. Reply Br. 6–7 (emphasis added). Based upon our review of the evidence relied upon by the Examiner, we find a preponderance of the evidence supports Appellant’s assertion that “nothing in paragraph [0057] nor any other paragraph of Meyer describes a question type in any context or based on any general understanding of what the term ‘question type’ would mean to one of ordinary skill in the art, much less in the context provided by the Specification.” Reply Br. 6. Nor do we find that paragraph 11 of Vancho, nor paragraphs 16, 106, and 107 of Boguraev, overcome the aforementioned deficiency of paragraph 57 of Meyer, for essentially the same reasons argued by Appellant in the Briefs. Newly cited paragraph 11 of Vancho principally describes the use of a “voice interactive device, such as a smartphone . . . such that it can make and receive phone calls and text-based messages; it can connect to the Internet, and may have third party applications that can be used on the device to Appeal 2020-006100 Application 15/620,462 8 collect clinical information.” Examples of other such devices are described as being “a smart watch, a cellular phone, a standard wired, landline telephone, or a desktop or laptop computer with a microphone and speaker and capable of communicating through voice over the Internet.” Vancho ¶ 11. Further, regarding disputed step L1 of claim 1, we find the Examiner has not fully developed the record to explain what specific claim elements are not found in Meyer, and are instead found as being taught or suggested by Boguraev or Vancho. In response to Appellant’s argument that Meyer nowhere mentions a question type, the Examiner merely responds that “limitations from the specification are not read into the claims.” Ans. 6. However, “determining a question type” is recited in disputed step L1 of claim 1 (emphasis added). Nor has the Examiner performed any meaningful claim construction of the “question type” of claim 1 in light of Appellant’s Specification. But “[b]oth anticipation under § 102 and obviousness under § 103 are two-step inquiries. The first step in both analyses is a proper construction of the claims . . . . The second step in the analyses requires a comparison of the properly construed claim to the prior art.” Medichem, S.A. v. Rolabo, S.L., 353 F.3d 928, 933 (Fed. Cir. 2003) (internal citations omitted). Thus, the correct approach requires: (1) interpreting each disputed claim limitation under BRI, and then, (2) reading the properly construed claim limitation on the corresponding feature found in the prior art reference. And when giving a claim limitation its broadest reasonable interpretation, we must provide “an interpretation that corresponds with what and how the inventor describes his invention in the specification, i.e., Appeal 2020-006100 Application 15/620,462 9 an interpretation that is ‘consistent with the specification.’” In re Smith Int’l, Inc., 871 F.3d 1375, 1383 (Fed. Cir. 2017) (citations omitted). And therein lies the problem with the Examiner’s rejection. In addition to not fully considering the “question type” claim 1 limitation in the context of the corresponding descriptions found in the Specification (¶¶ 26, 101, 105, 141 — see App. Br. 2), on this record, we find the Examiner has not adequately mapped4 the following bolded claim elements of step L1 of claim 1: “determining a question type of the digital survey question by analyzing the user-provided text using at least one processor to identify key terms and a sentence structure that indicate the question type.” Instead, the Examiner paints with a broad brush, requiring the Board to engage in some degree of speculation as to how the Examiner may be reading the bolded disputed elements of step L1 on the corresponding specific features found in the cited references. But we are a Board of review, and not a place of initial examination.5 And we cannot affirm the Examiner’s rejection based upon speculation. 4 See the mapping rule: 37 C.F.R. § 1.104(c)(2) (“When a reference is complex or shows or describes inventions other than that claimed by the applicant, the particular part relied on must be designated as nearly as practicable. The pertinence of each reference, if not apparent, must be clearly explained and each rejected claim specified.” (emphasis added)). 5 We note in an ex parte appeal, the Board “is basically a board of review — we review . . . rejections made by patent examiners.” Ex parte Gambogi, 62 USPQ2d 1209, 1211 (BPAI 2001). “The review authorized by 35 U.S.C. Section 134 is not a process whereby the examiner . . . invite[s] the [B]oard to examine the application and resolve patentability in the first instance.” Ex parte Braeken, 54 USPQ2d 1110, 1112 (BPAI 1999). Appeal 2020-006100 Application 15/620,462 10 We will not sustain the Examiner's rejection without some concrete evidence in the record supporting the Examiner’s underlying factual finding and legal conclusions. See, e.g., In re Vaidyanathan, 381 F. App’x 985 (Fed. Cir. 2010), and In re Wallen, 565 F. App’x 867 (Fed. Cir. 2014), both citing In re Zurko, 258 F.3d 1379, 1386 (Fed. Cir. 2001) (“[T]he Board must point to some concrete evidence in the record in support of these findings. To hold otherwise would render the process of appellate review for substantial evidence on the record a meaningless exercise.”). Accordingly, for essentially the same reasons argued by Appellant in the Briefs, as further discussed above, we are constrained on this record to reverse the Examiner’s obviousness rejection of independent claim 1. Remaining independent claims 9 and 12 recite the disputed “determining a question type” step L1 of claim 1 using similar language having commensurate scope (emphasis added). For the same reasons, we also reverse the Examiner’s obviousness rejection of independent claim 9, and of independent 12. Because we have reversed the Examiner’s rejection of each independent claim on appeal, for the same reasons, we reverse the Examiner’s obviousness rejection of each dependent claim on appeal. CONCLUSION The Examiner erred in rejecting claims 1–20 under 35 U.S.C. § 103 over the collective teachings and suggestions of the cited references. Appeal 2020-006100 Application 15/620,462 11 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–20 103 Meyer, Vancho, Boguraev 1–20 REVERSED