Avaya Inc.

Patent Trials and Appeals Board

Mar 12, 2021

2019006059 (P.T.A.B. Mar. 12, 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.
15/243,624 08/22/2016 Andrew D. Flockhart 4366-569-CON 7986
48500 7590 03/12/2021
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
MAUNG, THOMAS H
ART UNIT PAPER NUMBER
2654
NOTIFICATION DATE DELIVERY MODE
03/12/2021 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):
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 ANDREW D. FLOCKHART and ROBERT C. STEINER
____________________

Appeal 2019-006059
Application 15/243,624
Technology Center 2600
____________________

Before ROBERT E. NAPPI, JASON J. CHUNG, and
BETH Z. SHAW, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1 through 20. We have jurisdiction 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(a). According to Appellant, Avaya Inc. is the real party in interest.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a queueless contact center. Abstract. Claim
1 is reproduced below.
1. A method, comprising:
determining, by a microprocessor, an available work item
from a set of work items in a contact center;
wherein the contact center comprises a resource pool
devoid of queues,
wherein some of the resources in the resource pool are
paired resources that are matched with respective paired work
items from the set of work items, and other resources in the
resource pool are available resources that are not matched with
any of the work items from the set of work items, and
wherein every one of the available resources and paired
resources comprise a resource attribute combination that
indicates its abilities, wherein each resource
attribute combination is represented as a bit in a resource
set bitmap, analyzing, by the microprocessor, the available
work item for processing requirements; determining, by the
microprocessor, an available work item attribute combination
that satisfies the processing requirements, wherein the work
item attribute combination is represented as a bit in a work item
set bitmap; and
scanning, by the microprocessor, the available resources
and the paired resources to determine a set of qualified
resources using the resource set bitmap and the work item set
bitmap.
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REJECTIONS2
The Examiner rejected claims 1 through 20 based upon nonstatutory
double patenting over claims 1 through 17 of Flockhart (US Patent
8,634,543 B2). Final Act 3–5.
The Examiner rejected claims 1 through 20 based 35 U.S.C. § 101 for
being directed to patent-ineligible subject matter. Final Act 5–6.
The Examiner rejected claims 1 through 4, 7, 10 through 13, and 16
through 19 under 35 U.S.C. § 103 as unpatentable over Werth (US
2010/0138270 A1; June 3, 2010) and Mezo (US 2007/0255611 A1; Nov. 1,
2007). Final Act 6–19.
The Examiner rejected claims 5, 6, 8, 9, 14, 15, and 20 under 35
U.S.C. § 103 as unpatentable over Werth, Mezo, and Inamdar (US
2006/0093124 A1; May 4, 2006). Final Act 20–22.
Double Patenting Rejection
The Examiner rejects claims 1 through 20 based upon the judicially
created doctrine of double patenting over claims 1 through 17 of Flockhart
(US Patent 8,634,543 B2). Final Act 4. The Examiner states:
Although the claims at issue are not identical, they are not
patentable distinct from each other because both the pending
claims and the Patent's claims include minor and obvious
wording variations, that generally are directed toward a contact
center operation of matching work items with resources in a
resource pool, based on common attributes between the work
items and the resources in the resource pool, by utilizing
resource and work item bitmap.

2 Throughout this Decision we refer to the Appeal Brief filed February 12,
2019 (“Appeal Br.”); Reply Brief filed August 12, 2019 (“Reply Br.”); Final
Office Action mailed September 12, 2018 (“Final Act.”); and the
Examiner’s Answer mailed June 10, 2019 (“Ans.”).
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Final Act. 4–5. Further, on pages 23 and 24 of the Answer, the Examiner
provides a mapping of the limitations of claim 1 on appeal to claims 1 and 7
of Flockhart.
Appellant argues “[P]ending claims 1–20 are not coextensive in scope
with claims 1–17 of U.S. Patent No. 8,634,543. Accordingly, withdrawal of
the double patenting rejection is respectfully requested.” Appeal Br. 8.
We are not persuaded of error in the Examiner’s obvious double
patenting rejection of claims 1 through 20. Appellant’s argument that the
claims are not coextensive does not address the Examiner’s determination
that the current claims are obvious variations of the claims in Flockhart.
Accordingly, we sustain the Examiner’s obviousness double patenting
rejection of claims 1 through 20.
Patent Eligibility Rejection
PRINCIPLES OF LAW
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101.3 The USPTO
current eligibility guidance is found in the Ninth Edition, Revision 10.2019
(revised June 2020) of the Manual of Patent Examination Procedure
(MPEP), and particularly within Sections 2103 through 2106.07(c).

3 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Revised Guidance”). In response to received public
comments, the Office issued further guidance on October 17, 2019,
clarifying the 2019 Revised Guidance. USPTO, October 2019 Update:
Subject Matter Eligibility (the “October 2019 Update”). “All USPTO
personnel are, as a matter of internal agency management, expected to
follow the guidance.” 84 Fed. Reg. at 51; see also October 2019 Update at
1.
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“Because the MPEP now incorporates the 2019 Revised Patent Subject
Matter Eligibility Guidance (2019 PEG), October 2019 Patent Eligibility
Guidance Update (October 2019 Update), and the Berkheimer Memo,4 all
references to those materials should now be directed to the MPEP.” See
https://www.uspto.gov/patent/laws-and-regulations/examination-
policy/subject-matter-eligibility (emphasis added). All references to the
MPEP throughout this Decision are to the Ninth Edition, Revision 10.2019
(Last Revised June 2020), unless otherwise indicated.
Under MPEP § 2106, 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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (“Step 2A, Prong Two”).5

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 “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or

4 Referring to Berkheimer v. HP, Inc., 881 F.3d. 1360, 1369 (Fed. Cir.
2018).

5 “Examiners evaluate integration into a practical application by (a)
identifying whether there are any additional elements recited in the claim
beyond the judicial exception, and (b) evaluating those additional elements
individually and in combination to determine whether the claim as a whole
integrates the exception into a practical application.” MPEP § 2106.04(d)II.
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(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 MPEP § 2106.05(d)).

ANALYSIS
The Examiner rejects independent claims 1, 10, and 17, and the claims
which depend upon them, as reciting concepts relating to organizing human
activity and concepts involving a mental process. Final Act. 5 (citing
Intellectual Ventures I LLC v. Erie Indemnity Co. 850 F.3d 1315, 1328 (Fed.
Cir. 2017)), Ans. 25–26 (citing BASCOM Glob. Internet Servs., Inc. v.
AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) and Intellectual
Ventures I LLC v. Erie). Further, the Examiner identifies that the claims do
not integrate the abstract idea into a practical application. Ans. 26–27. The
Examiner states that the use of a bitmap:
does not constitute claiming of an improvement in technology
because no specifics of the bitmap is provided in the claim to
amount to significantly more than a data structure to compare
data sets. This can be analogous to objects being brought into a
location so that they can be paired up with a right resource,
among many resources presiding in the location (See also Fig. 5
of the Appellant's specification). Without the specifics of the
bitmap and resource pairing improvement system structure,
generating a resource data structure/bitmap is merely a generic
automation of the paper and pencil process of drawing up a
chart and putting on the chart, for example, ls and 0s (or
checkmarks and “X”s), to designate the qualified and
unqualified resources.
Ans. 27. Finally, the Examiner identifies that the claims do not include
features that are significantly more than the abstract idea but rather just
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recite generic computer elements that do not meaningfully limit the abstract
idea. Final Act 6.
Appellant argues that the Examiner’s rejection of independent claims
1, 10, and 17 is in error as the limitations recited are not concepts performed
in the human mind but rather are directed to specific improvements to the
way computer systems operate and improve the efficiency of a contact
center. Appeal Br. 9. Appellant argues that the Specification identifies their
system solves problems were contact centers are impractically managing
tens of thousands of queues. Appeal Br. 9. Further, Appellant argues that
the claims recite a specific improvement because a “bit array or an integer
that represents whether a property is possessed cannot be said to teach or
suggest an attribute combination that is represented as a bit in a bitmap.”
Appeal Br. 9. Appellant argues that the claims do not recite conventional
method of managing items in a contact center as they recite using attribute
pairs and comparing attribute pairs to processing requirements as claimed.
Appeal Br. 9–10, Reply Br. 3. Additionally, Appellant asserts that the
claims recite a contact center and as such is necessarily rooted in computer
technology. Reply Br. 4. Further, Appellant argues that the claimed
determining step and scanning step recite using a microprocessor and as
such “are elements that are beyond any judicial exception and apply a
practical application because these elements reflect an improvement to the
technical field.” Appeal Br. 10.
Appellant’s augments have not persuaded us of error in the
Examiner’s rejection of independent claims 1, 10, and 17 as being directed
to patent-ineligible subject matter. We are not persuaded that the Examiner
erred in finding the claims recite a judicial exception, both a method of
organizing human activity and a mental process. The 2019 Revised
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Guidance identifies certain methods of organizing human activity as
abstract, including “managing personal behavior or relationships or
interactions between people (including social activities, teaching, and
following rules or instructions).” 2019 Revised Guidance, 84 Fed. Reg. at
52. Representative claim 1 recites a contact center having a resource pool
(an agent, i.e. a person, see Specification ¶4), where some of the resources
are paired with work items and other are not, where resources are associated
with attribute combination of abilities (a person’s abilities), analyzing a
work item to determine an attribute combination (represented as a bit map)
to satisfy the processing requirement of the work item (determining skills to
complete work item) and scanning resources to determine resources
qualified to using bitmap (determining who is qualified to perform a job).
This is nothing more than an abstract process of determining who is
qualified to perform a specific task, such as finding a doctor or mechanic to
heal or fix a specific issue, and as such is reciting organizing human activity
(managing personal behavior). That the attributes are considered as a
combination does not make the idea less abstract. The activity combination
could be the person’s qualifications and location or language they speak (e.g.
determining Dermatologist who speaks Spanish, in New York City, to see a
Spanish speaking patient with a skin rash in New York City, something a
health clinic’s telephone operator would likely do when routing a call).
Further, these steps are reciting gathering data concerning a resource and
work item, and analyzing it to determine attribute combination, which are
steps that can be performed in the human mind. See e.g., Classen
Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057, 1067 (Fed. Cir.
2011) (claim to collecting and comparing known information determined to
be steps that can be practically performed in the human mind); In re TLI
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Communications 823 F.3d 607, 613 (Fed. Cir. 2016) (finding claims
classifying and storing digital images as reciting an abstract idea) Content
Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d
1343, 1347 (Fed. Cir. 2014) (“The concept of data collection, recognition,
and storage is undisputedly well-known. Indeed, humans have always
performed these functions.”). We concur with the Examiner that the claimed
bitmap structure could merely be a chart created with pencil and paper. We
consider it to be a form of a lookup table or an index. We also note that the
concept of matching people with differing skill sets to jobs to be performed,
is a process that managers often do when assigning work. Appellant’s
argument, on page 10 of the Appeal Brief that the process as “the mind
cannot memorize all available resources” is not persuasive as the claim is
not limited to the size of the pool of available resources or the number of
attribute combination. Thus, Appellant has not persuaded us the Examiner
erred in determining the independent claims recite an abstract concept.
Further, Applicant’s arguments have not persuaded us the Examiner
erred in finding the claims do not recite a practical application of the judicial
exception. We disagree with Appellant that the recitation of a contact center
necessarily shows that the invention is rooted in computer technology.
While, Appellant’s Specification discusses contact centers as being an
automated contact distribution system, we do not consider the concept of
finding people who have the skills to perform a job as necessarily a
computer technology. Spec. ¶4. Rather, as discussed above, the process is
also able to be performed by a human. Further, we consider the recitation of
a microprocessor performing the process and the use of a bitmap of attribute
pairs as merely reciting use of a computer as a tool to implement the abstract
concept. See, e.g., RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327
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(Fed. Cir. 2017) (“Unlike Enfish, [the claim] does not claim a software
method that improves the functioning of a computer . . . [but] claims a
‘process that qualifies as an ‘abstract idea’ for which computers are invoked
merely as a tool.’”) (Citation omitted). Our reviewing court said “‘[the]
mere automation of manual processes using generic computers’ . . . ‘does
not constitute a patentable improvement in computer technology.’” Trading
Techs. Int’l Inc. v. IBG LLC, 921 F.3d 1378, 1384 (Fed. Cir. 2019) (quoting
Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir.
2017)). USPTO examination procedure also requires that “the claim must
include more than mere instructions to perform the method on a generic
component or machinery to qualify as an improvement to an existing
technology.” MPEP § 2106.05(a). Thus, Appellant’s arguments that the
claims are necessarily rooted in computer technology has not persuaded us
the Examiner erred in finding the claims do not recite a practical application
of the abstract concept.
Finally, Appellant’s arguments have not persuaded us the Examiner
erred in finding that the claims recite significantly more than the abstract
idea. Under the 2019 Revised Guidance, if a claim: (1) recites a judicial
exception, and (2) does not integrate that exception into a practical
application, we then look to whether the claim adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)); or, simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
Here the Examiner has found that the additional limitation of a
microprocessor is generically recited, i.e. represents a conventional machine.
Final Act. 6, Ans. 27. We concur with the Examiner. Appellant’s
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Specification discusses the invention being performed on a plurality of types
of devices with microprocessors and this is merely reciting using a well
understood, routine, and conventional microprocessor. Spec.¶ 97. Further,
as identified by the Examiner, the claimed bitmap, to represent an attribute
combination, is recited with little specificity. Ans. 27. As discussed above,
this broad recitation encompasses a lookup table or an index, a well-known
concept. Accordingly, Appellant’s arguments have not persuaded us that the
Examiner erred in finding the claims do not recite significantly more than
the abstract idea and we sustain the Examiner’s rejection of independent
claims 1, 10, and 17.
With respect to each of the dependent claims, the Appellant restates
the claim limitation, and states:
[t]his claim is patentable over the prior art references, alone or
in combination, at least for the reasons explained by Appellant
and because the prior art references are silent regarding the
claimed limitations. Further, the aforementioned limitations are
additionally patentable because, for example, they because they
are not practical, or even possible, to perform in the mind and
also because they are elements that are beyond any judicial
exception and apply a practical application because these
elements reflect an improvement to the technical field.
Appeal Br. 11.
We are not persuaded of error by these statements as they are not
separate arguments under 37 C.F.R § 41.37. These conclusory arguments
that the additional claims are patent eligible are considered to be nothing
more than a general allegation of patentability and are not considered
separate patentability arguments. See In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
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recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art”). As such, Appellant’s arguments
directed to the rejection of these claims are not persuasive of error and we
sustain the Examiner’s rejection of dependent clams 2 through 9, 11 through
16 and 18 through 20 for the same reasons discussed above with respect to
independent claims 1, 10, and 17.
Obviousness Rejections
Appellant argues the Examiner’s obviousness rejection of independent
claims 1, 10, and 17 is in error as the combination of Werth and Mezo do not
teach a resources attribute combination is represented as a bit in a resource
bit map as recited in each of the independent claims. Appeal Br. 16–19,
Reply Br. 5–7.
The Examiner responds to Appellant’s arguments on pages 28 and 29
of the Answer. The Examiner cites to Appellant’s Figure 3, and says that
each row of the bitmap represents bits that signify work items that possess a
specific attribute combination. Ans. 28. The Examiner states that the term
“attribute combination” is interpreted as rows of bit arrays in bitmap 320 of
Fig. 4. Based upon this interpretation, the Examiner finds that Mezo teaches
each resource combination in the bitmap. Ans. 28, 29 (citing Mezo ¶¶ 105,
106).
Appellant’s arguments have persuaded us of error in the Examiner’s
rejection. Independent claim 1, recites “each resource attribute combination
is represented as a bit in a resource set bitmap.” Independent claims 10 and
17 recite similar limitations. We disagree with the Examiner’s interpretation
of the attribute combination being rows of bits. Ans. 28. Appellant’s
Specification identifies that each bit in the row of the bitmap 320 (Fig.3)
resents an attribute combination (Spec. ¶118) and not as the Examiner states
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the entire row. Ans. 28. As such, the claim recites that a single bit of the
bitmap represents a combination of attributes. We agree with the Examiner
that Mezo teaches a bitmap of attributes but in this bitmap each bit
represents one attribute (e.g. bit 1, for English, bit 2 for Spanish…), not a
combination of attributes as claimed. Mezo ¶¶105, 106. Accordingly, we
do not sustain the Examiner’s obviousness rejection of claims 1 through 4, 7,
10 through 13, and 16 through 19 over the combination of Werth and Mezo.
The Examiner’s obviousness rejection of dependent claims 5, 6, 8, 9,
14, 15, and 20 relies upon the combination of Werth and Mezo to teach the
limitations of independent claims 1, 10, and 17. Accordingly, the rejection
suffers the same deficiency as discussed with respect to claims 1, 10, and 17.
As such we similarly do not sustain the Examiner’s obviousness rejection of
claims 5, 6, 8, 9, 14, 15, and 20.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 Double Patenting,
Bares
1–20
1–20 101 Eligibility 1–20
1–4,7, 10–
13, 16–19
103 Werth, Mezo 1–4,7, 10–
13, 16–19
5, 6, 8, 9, 14,
15, 20
103 Werth, Mezo,
Inamdar
5, 6, 8, 9,
14, 15, 20
Overall
Outcome
1–20
AFFIRMED