Avaya, Inc.Download PDFPatent Trials and Appeals BoardMar 31, 202014273195 - (D) (P.T.A.B. Mar. 31, 2020) Copy Citation 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. 14/273,195 05/08/2014 George Erhart 4366-648 7330 48500 7590 03/31/2020 SHERIDAN ROSS P.C. 1560 BROADWAY, SUITE 1200 DENVER, CO 80202 EXAMINER ELKASSABGI, ZAHRA ART UNIT PAPER NUMBER 3623 NOTIFICATION DATE DELIVERY MODE 03/31/2020 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): cjacquet@sheridanross.com edocket@sheridanross.com pair_Avaya@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GEORGE ERHART, VALENTINE C. MATULA, and DAVID SKIBA ____________ Appeal 2019-003895 Application 14/273,195 Technology Center 3600 ____________ Before NORMAN H. BEAMER, ADAM J. PYONIN, and GARTH D. BAER, Administrative Patent Judges. BEAMER, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–20. We have jurisdiction over the pending rejected claims under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Avaya, Inc. as the real party in interest. (Appeal Br. 2.) Appeal 2019-003895 Application 14/273,195 2 THE INVENTION Appellant’s disclosed and claimed invention is directed to monitoring the activities of customers to provide a more granular staffing allocation when making staffing decisions. (Abstract.) Independent claim 1, reproduced below, is illustrative of the subject matter on appeal: 1. A method, comprising: monitoring, by machine-based detection equipment, a retail setting comprising a first portion and second portion and monitoring a customer and wherein the first portion and second portion are distinct from a checkout portion; comparing, by a microprocessor, an activity comprising at least a duration of time spent by at least one of the customers within the first portion and having a current staff allocation within the second portion to a historic activity comprising at least a historic duration of time spent by at least one prior customer within the first portion and having a historic staff allocation within the second portion; based on the comparison step, determining, by the microprocessor, a staffing allocation adjustment to the current staff allocation in the second portion to place the retail setting in a more ideal state when the at least one of the customers enters the second portion, as compared to the retail setting being in a less ideal state, upon the at least one of the customers entering the second portion absent the staffing allocation adjustment; and based on the determination step, sending, by the microprocessor, a notification to an agent device, the notification comprising a message to apply the staffing allocation adjustment. Appeal Br. 16. (Claims Appendix.) Appeal 2019-003895 Application 14/273,195 3 REJECTIONS The Examiner rejected claims 1–20 under 35 U.S.C. § 101 as being directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. (Final Act. 5.) The Examiner rejected claims 1, 2, 4–7, and 9–19 under 35 U.S.C. § 103 as being unpatentable over Boss et al. (US 8,639,543 B2, issued Jan. 28, 2014) (hereinafter “Boss”) and Cohen et al. (US 2010/0036706 A1, published Feb. 11, 2010) (hereinafter “Cohen”). (Final Act. 7.) The Examiner rejected claim 3 under 35 U.S.C. § 103 as being unpatentable over Boss, Cohen, and Redman (US 2006/0010027 A1, published Jan. 12, 2006). (Final Act. 13.) The Examiner rejected claims 8 and 20 under 35 U.S.C. § 103 as being unpatentable over Boss, Cohen, and Todd (US 2006/0031131 A1, published Feb. 9, 2006). (Final Act. 14.) ISSUES ON APPEAL Appellant’s arguments in the Appeal and Reply Briefs present the following issues:2 Issue One: Whether the Examiner erred in finding claims 1, 4–10, and 13–21 are directed to a judicial exception without significantly more. (Appeal Br. 5–11; Reply Br. 1–8.) 2 Rather than reiterate the arguments of Appellant and the positions of the Examiner, we refer to the Appeal Brief (filed Oct. 10, 2018); the Reply Brief (filed Apr. 19, 2019); the Final Office Action (mailed May 17, 2018); the Advisory Action (mailed July 31, 2018); and the Examiner’s Answer (mailed Feb. 19, 2019) for the respective details. Appeal 2019-003895 Application 14/273,195 4 Issue Two: Whether the Examiner erred in finding the combination of Boss and Cohen teaches or suggests the limitation of monitoring, by machine-based detection equipment, a retail setting comprising a first portion and second portion and monitoring a customer and wherein the first portion and second portion are distinct from a checkout portion, as recited in independent claim 1, and the commensurate limitation recited in independent claims 10 and 14. (Appeal Br. 12–14; Reply Br. 8–14.) ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments. Arguments Appellant could have made but chose not to make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). First Issue — Patent Eligibility The Examiner concludes that the independent claims have been found to allocate staff procedure and location for optimal customer satisfaction. This is a concept related to the interpersonal activities, such as, managing relationships between people, human behavior, and sales activities (Final Act. 5), and the claims “recite the abstract idea of certain methods of organizing human activity.” (Ans. 4.) The Examiner further concludes that there is nothing in the claims that is significantly more than the abstract idea, given that “all elements in combination are performing their ordinary function in a conventional and generic arrangement, therefore, do not provide a technical improvement in the art.” (Ans. 6.) Appeal 2019-003895 Application 14/273,195 5 Appellant argues that “what is claimed are monitoring equipment that detects and responds to a monitored subject” (Reply Br. 3), and “the claims do not recite humans or human actions, but rather equipment that, based on a particular stimulus, perform a particular task.” (Reply Br. 4.) Appellant contends “that the claims go well beyond linking the use of a judicial exception to a particular technological environment” (Reply Br. 5), and “the ‘unconventional way’ (See, Guidance, p. 24) in which data is gathered, processed, and acted upon demonstrates an inventive concept.” (Reply Br. 7.) An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. Here, independent claim 1 and its dependent claims relate to a method, independent claim 10 and its dependent claims relate to a system, and independent claim 21 relates to a computer readable medium — i.e., a process, machine, and manufacture, respectively. However, the Supreme Court has long held that “[l]aws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 598–99 (2013)). The “abstract ideas” category embodies the longstanding rule that an idea, by itself, is not patentable. Alice, 573 U.S. at 216–17. In Alice, the Supreme Court sets forth an analytical “framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Id. at 217. The first step in the analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts,” Appeal 2019-003895 Application 14/273,195 6 such as an abstract idea. Id. Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski v. Kappos, 561 U.S. 593, 611 (2010); mathematical concepts (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). If the claims are directed to a patent-ineligible concept, the second step in the Alice/Mayo analysis is to consider the elements of the claims “individually and ‘as an ordered combination’” to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” 573 U.S. at 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). In other words, the second step is to “search for an ‘inventive concept’ — i.e., 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.’” 573 U.S. at 217–18 (quoting Mayo, 566 U.S. at 72–73.) 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. 573 U.S. at 221. A transformation into a Appeal 2019-003895 Application 14/273,195 7 patent-eligible application requires more than simply stating the abstract idea although adding the words “apply it.” Id. Further to the Alice/Mayo analytical framework, and acknowledged by Appellant in the Reply Brief, the USPTO published revised guidance on the application of Section 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Revised Guidance”); USPTO October 2019 Update: Subject Matter Eligibility (Oct. 17, 2019) (“Update”), noticed at 84 Fed. Reg. 55942 (Oct. 18, 2019). Under the Revised 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); and (2) additional elements that integrate the judicial exception into a practical application (see Manual Patent Examining Procedure, “MPEP” § 2106.05(a)–(c), (e)–(h)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, does the Office then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that are not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(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 Revised Guidance. Appeal 2019-003895 Application 14/273,195 8 In evaluating the claims at issue, we consider claim 1 as representative, consistent with how Appellant and the Examiner analyze the claims. See 37 C.F.R. § 41.37(c)(1)(iv) (2016). Omitting the portions of the claim invoking use of generic technology (which are discussed separately below), the remaining limitations of claim 1 elaborate on a method of monitoring customer activity in a retail setting to determine staffing allocation adjustments, via the steps of: (a) monitoring . . . a retail setting comprising a first portion and second portion and monitoring a customer and wherein the first portion and second portion are distinct from a checkout portion; (b) comparing . . . an activity comprising at least a duration of time spent by at least one of the customers within the first portion and having a current staff allocation within the second portion to a historic activity comprising at least a historic duration of time spent by at least one prior customer within the first portion and having a historic staff allocation within the second portion; (c) based on the comparison step, determining . . . a staffing allocation adjustment to the current staff allocation in the second portion to place the retail setting in a more ideal state when the at least one of the customers enters the second portion, as compared to the retail setting being in a less ideal state, upon the at least one of the customers entering the second portion absent the staffing allocation adjustment; and (d) based on the determination step, sending . . . a notification . . . comprising a message to apply the staffing allocation adjustment. Apart from the use of generic technology (discussed further below), each of these limitations describes steps in which the “activities of customers may be monitored to provide a more granular staffing allocation.” (Abstract.) Appeal 2019-003895 Application 14/273,195 9 As stated in the Revised Guidance, methods of organizing human activity considered an abstract idea include “commercial or legal interactions fundamental economic principles or practices (including . . . marketing or sales activities or behaviors; business relations); [and] managing . . . interactions between people (including . . . following rules or instructions).” (Revised Guidance, 84 Fed. Reg. at 52). The Update states that “a claim recites a judicial exception when the judicial exception is ‘set forth’ or ‘described’ in the claim.” Update at 1. Here, independent claim 1 describes the “comparing” of “an activity comprising at least a duration of time spent by at least one of the customers” to a “historic duration of time spent by at least one prior customer” and then determining “a staffing allocation adjustment.” The above listed claim 1 limitations relate to the subject matter of allocating staffing in furtherance of “assist[ing] the customer or customers within an area with a spike in customer activity” or providing customers with “assistance from staff members having the required skills to complete their purchase.” (Abstract.) See, e.g., In re Ferguson, 558 F.3d 1359, 1364 (Fed. Cir. 2009) (holding methods “directed to organizing business or legal relationships in the structuring of a sales force (or marketing company)” to be ineligible); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015) (deeming the claim at issue “not meaningfully different from the ideas found to be abstract in other cases before the Supreme Court and our court involving methods of organizing human activity”). The claim thus describes “commercial or legal interactions” that include “sales activities or behaviors,” and also describes Appeal 2019-003895 Application 14/273,195 10 “managing personal behavior or relationships or interactions between people.” Therefore, we agree with the Examiner that the subject matter of claim 1 recites an abstract idea, as do the remaining claims. Further pursuant to the Revised Guidance, we consider whether there are additional elements set forth in claim 1 that integrate the judicial exception into a practical application. Revised Guidance, 84 Fed. Reg. at 54–55. Here, the abstract idea of claim 1 is carried out using “machine- based detection equipment,” a “microprocessor,” and an “agent device.” We agree with the Examiner that these elements “are used in a conventional and generic arrangement” (Ans. 5) and “Applicant’s Specification is silent to any improvement in computer-related technology.” (Ans. 6.) “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Mayo, 566 U.S. at 77. Nor does the subject matter of claim 1 contain additional elements that implement the judicial exception with a “particular machine,” because the claims do not specify any details in regard to the processor. See MPEP § 2106.05(b). Appellant’s contentions that “the machine-based detection equipment, microprocessor, network, and sensor, of the independent claims define a ‘particular machine’” and that “the claims go well beyond linking the use of a judicial exception to a particular technological environment” (Reply Br. 5) are unsupported by factual evidence, and entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Further, the method does not transform matter; at best it transforms information. See MPEP § 2106.05(c). Nor does claim 1 have any other meaningful limitations (MPEP § 2106.05(e)), or any of the other Appeal 2019-003895 Application 14/273,195 11 considerations set forth in the Revised Guidance regarding a determination of whether additional elements integrate the judicial exception into a practical application. See Revised Guidance, 84 Fed. Reg. at 55. Accordingly, we conclude that the subject matter of claim 1 (and the remaining claims) is directed to commercial or legal interactions and managing personal behavior or relationships or interactions between people, which are examples of the certain methods of organizing human activity, and thus an abstract idea, and the additional elements recited therein do not integrate the abstract idea into a practical application. Turning to the second step of the Alice inquiry, we consider the elements of the claims “individually and ‘as an ordered combination’” to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” 573 U.S. at 217 (quoting Mayo, 566 U.S. at 66, 79, 78 (2012)). We do not agree with Appellant that additional elements of claim 1, whether individually or in combination, add “significantly more” to the basic abstract idea encompassed by the claim sufficient to transform the claimed abstract idea into a patent-eligible application. Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent- eligible invention.”). Here, the monitoring by machine-based detection equipment in conjunction with determinations made by a microprocessor is part of the abstract idea of staff allocation. Other than using generic technology — “machine-based detection equipment,” a “microprocessor,” and an “agent device” — these improvements are elaborations on the basic abstract idea itself, in which empirical and/or historical data is used to determine staffing. “It is clear Appeal 2019-003895 Application 14/273,195 12 from Mayo that the ‘inventive concept’ cannot be the abstract idea itself.” Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018). Moreover, “[p]atent law does not protect claims to an ‘asserted advance in the realm of abstract ideas . . . no matter how groundbreaking the advance.”’ Id. The record supports the Examiner’s finding that the additional elements — such as “‘machine-based detection equipment . . . microprocessor . . . sensor . . . database . . . [and] agent device”’ are used in a “conventional and generic arrangement.” (Ans. 5 (emphasis omitted)). The disclosure states that “[detecting devices] 106 may include microphone 106A, pressure mat 106B, camera 106C, radio frequency identification (‘RFID’) tag 106D, receiver 114, or other sensing device.” (Spec. ¶ 38). These devices are well-understood, routine, conventional, and specified at a high level of generality. Revised Guidance, 84 Fed. Reg. at 56. Nothing regarding any aspect of the “ordered combination” of the claim elements provide significantly more than the abstract idea that claim 1 is directed to. Accordingly, we sustain the Examiner’s 35 U.S.C. § 101 rejection of claim 1. Appellant provides no arguments that would differentiate the remaining claims from claim 1. Thus, the foregoing analysis of claim 1 is exemplary of that for independent claims 10 and 14, and dependent claims 2–9, 11–13 and 15–20. See 37 C.F.R. § 41.37(c)(1)(iv) (2016). Therefore, we also sustain the Examiner’s 35 U.S.C. § 101 rejection of those claims. Appeal 2019-003895 Application 14/273,195 13 Second Issue — Obviousness In finding that the combination of Boss and Cohen teaches or suggests the independent claim 1 limitation at issue, the Examiner relies on Boss’ disclosure of: (1) an RFID system in a business with customers waiting in lines to check out; (2) when a calculated average checkout time for customers exceeds three minutes, the system summons another employee to serve as a cashier in a vacant POS state (i.e., current staff allocation)); (3) a comparison of point of sale transaction of past staff allocation and customer satisfaction with potential change and probable customer satisfaction increasing; and (4) a retail setting with multiple sections including check and non-checkout portions. (Final Act. 7–8, Ans. 10–11; Boss 3:9–38, 10:18–33, 9:27–38, 11:40–51, 4:27–49, Fig. 3). The Examiner further relies on the Cohen’s disclosure of: (1) a department store may be divided into a plurality of sub-regions in which expected customer demand may include a requirement for information about products in that sub-region; and (2) sub-region traffic counters at the entrance to each of the aisles so that persons entering or leaving a particular aisle can be counted. (Final Act. 8, Ans. 2–3; Cohen ¶¶ 85, 115, 103, 119, 123.) Appellant argues that “Boss must teach all that is proffered as occurring outside the checkout area — it does not” (Reply Br. 10 (emphasis omitted), citing Boss Fig. 3, 3:9–38, 10:18–33), and that “Cohen may also teach []sub-region traffic counters . . . so that persons entering a particular aisle or leaving a particular aisle can be counted.” (Reply Br. 11, citing Cohen ¶¶ 85, 115.) Appellant contends “the Examiner [is] selectively Appeal 2019-003895 Application 14/273,195 14 parsing the monitoring of the retail setting from the monitoring of the customer.” (Reply Br. 11.) We are not persuaded by Appellant’s arguments. The Examiner finds, and we agree, that “Boss does disclose a distinction between [a first and second portion]” (Ans. 10), as Boss teaches “work areas” (Ans. 10, quoting Boss 3:9–38) and illustrates “a retail setting with multiple sections including checkout and non-checkout portions.” (Ans. 10, citing Boss Fig. 3, 3:9–38, 10:18–33). The Examiner further finds, and we agree, that Cohen teaches an analysis of portions of the retail setting “distinct from the checkout portion” (Ans. 12 (page mistakenly labelled as page 3)), because Cohen teaches “[e]xpected customer demand may include a requirement for information about products in the sub-region.” (Ans. 12 (emphasis omitted), citing Cohen ¶ 85; see also Fig. 5.) We also agree with the Examiner’s finding that Cohen also teaches counting customers in aisles “that are distinct from the checkout portion of a store.” (Ans. 13 (page mistakenly labelled as page 4), citing Cohen ¶ 115.) We do not agree with Appellant that both Boss and Cohen must teach first and second portions distinct from the checkout portion, as the Examiner has shown how one skilled in the art would arrive at the claimed invention using the combination of Boss and Cohen. Appellant’s remaining arguments in the Reply (see Reply Br. 12–14) were not raised in the Appeal and do not respond issues raised in the Answer, and accordingly are not considered. Accordingly, we sustain the Examiner’s obviousness rejection of independent claim 1, as well as independent claims 10 and 14 commensurate in scope, and all dependent claims not argued separately. See Appeal Br. 14. Appeal 2019-003895 Application 14/273,195 15 For the reasons stated above, we affirm the Examiner’s non-statutory subject matter rejection of claims 1–20, and affirm the Examiner’s obviousness rejection of claims 1–20. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed 1–20 101 Eligibility 1–20 1, 2, 4–7, 9–19 103 Boss, Cohen 1, 2, 4–7, 9–19 3 103 Boss, Cohen, Redman 3 8, 20 Boss, Cohen, Todd 8, 20 Overall Outcome 1–20 TIME PERIOD FOR RESPONSE 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). AFFIRMED Copy with citationCopy as parenthetical citation