Ex Parte Kohler et al

Patent Trial and Appeal Board

Oct 19, 2017

13408793 (P.T.A.B. Oct. 19, 2017)

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.
13/408,793 02/29/2012 Joylee Kohler 4366-587 1249
48500 7590
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
BROCKINGTON III, WILLIAM S
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
10/23/2017 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
pair_Avay a @ firsttofile. com
edocket @ sheridanross .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOYLEE KOHLER, ROBERT C. STEINER,
and ANDREW D. FLOCKHART
Appeal 2016-0009741
Application 13/408,7932
Technology Center 3600
Before NINA L. MEDLOCK, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 3—10, and 12—21. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants’ Appeal Brief (“App. Br.,” filed
March 2, 2015) and Reply Brief (“Reply Br.,” filed October 9, 2015), and
the Examiner’s Answer (“Ans.,” mailed August 20, 2015) and Final Office
Action (“Final Act.,” mailed December 1, 2014).
2 Appellants identify Avaya, Inc. as the real party in interest. App. Br. 2.
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CLAIMED INVENTION
Appellants’ claimed invention “is generally directed toward
communications and more specifically toward contact centers” (Spec. 11).
Claims 1,10, and 18 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of operating a contact center, comprising:
generating, by a processor of an electronic
communications system, a break-type work item, the break-type
work item indicating an obligatory break off from work for a
predetermined amount of time and prohibiting the recipient of
the break-type work item from performing non-break-type work
items for at least the predetermined amount of time, having one
or more attributes that enable a routing decision to be made with
respect to routing the break-type work item among a plurality of
resources in a contact center, and wherein the break-type work
item is generated prior to the recipient of the break-type work
item becoming known;
including the break-type work item in a work pool that
includes work items associated with customers;
comparing the one or more attributes of the break-type
work item with attributes of the plurality of resources;
selecting, based on the comparing step, a first resource
from the plurality of resources to receive the break-type work
item;
routing, by the electronic communication system, the
break-type work item to the first resource, thereby forcing the
first resource to take a break for the predetermined amount of
time; and
wherein the one or more attributes define a duration of the
predetermined amount of time.
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REJECTIONS
Claims 1, 3—10, and 12—21 are rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
Claims 1, 3, 5—10, and 12—21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Paul et al. (US 2010/0049574 Al, pub. Feb. 25, 2010)
(hereinafter “Paul”), Xie et al. (US 2010/0111287 Al, pub. May 6, 2010)
(hereinafter “Xie”), Large (US 2007/0017531 Al, pub. Jan. 25, 2007), and
Mcllwaine et al. (US 2007/0127689 Al, pub. June 7, 2007) (hereinafter
“Mcllwaine”).
Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Paul, Xie, Large, Mcllwaine, and Dorenbosch et al. (US 2003/0186716 Al,
pub. Oct. 2, 2003) (hereinafter “Dorenbosch”).
ANALYSIS
Non-Statutory Subject Matter
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “[ljaws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. Pty. Ltd. v. CIS
BankInt’l, 134 S. Ct. 2347, 2354 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 132 S. Ct. 1289, 1300 (2012), “for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts.” Alice Corp.,
134 S. Ct. at 2355. The first step in that analysis is to “determine whether
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the claims at issue are directed to one of those patent-ineligible concepts.”
Id. If the claims are not directed to a patent-ineligible concept, e.g., an
abstract idea, the inquiry ends. Otherwise, the inquiry proceeds to the
second step where the elements of the claims are considered “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.” Id. (quoting Mayo, 132 S. Ct. at 1297).
The Court acknowledged in Mayo, that “all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas.” Mayo, 132 S. Ct. at 1293. We, therefore, look to whether
the claims focus on a specific means or method that improves the relevant
technology or are instead directed to a result or effect that itself is the
abstract idea and merely invoke generic processes and machinery.
See Enflsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).
We are not persuaded, as an initial matter, by Appellants’ argument
that the Examiner erred in rejecting the pending claims under 35 U.S.C.
§101 because no attempt is made to “tie up” all breaks of a contact center
agent or any other judicial exception (App. Br. 7—8). There is no dispute
that the Supreme Court has described “the concern that drives this
exclusionary principle [i.e., the exclusion of abstract ideas from patent
eligible subject matter] as one of pre-emption.” Alice Corp., 134 S. Ct.
at 2354. But characterizing pre-emption as a driving concern for patent
eligibility is not the same as characterizing pre-emption as the sole test for
patent eligibility. “The Supreme Court has made clear that the principle of
preemption is the basis for the judicial exceptions to patentability” and “[f]or
this reason, questions on preemption are inherent in and resolved by the
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§ 101 analysis.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015) (citing Alice Corp., 134 S. Ct. at 2354). Yet, although
“preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility.” Id.
Appellants variously quote portions of the USPTO’s June 25, 2014
“Preliminary Examination Instructions in view of the Supreme Court
Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et a IP
and the supplemental “2014 Interim Guidance on Patent Subject Matter
Eligibility,” 79 Fed. Reg. 74618 (Dec. 16, 2014) (App. Br. 7—9), and
summarily assert that “[t]he claims of the instant application do not recite a
judicial exception” {id. at 7; see also id. at 8). But Appellants offer no
persuasive argument or technical reasoning to support that position.
Appellants also quote from the Federal Circuit’s opinion in
DDR Holdings, LLCv. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) (App. Br. 8—9), and assert that the DDR court’s reasoning, as applied
to the present application, “indicates a solution specifically arising in the
realm of contact center computer networks and does not merely recite the
performance of a business practice from the pre-Internet world with the
requirement to perform it on the Internet” (id.). But again, Appellants
present no persuasive argument or technical reasoning to support their
position. Nor, for that matter, do Appellants even identify the problem
“arising in the realm of contact center computer networks” that the claimed
invention allegedly solves.
Turning to the second step of the Mayo!Alice framework, Appellants
argue that although instructing an agent to take a break may be “a non-
statutory subject, much more is being provided here” (App. Br. 10).
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Appellants assert that the claims go beyond human behavior and that
benefits are provided by implementations of the claims and illustrate the
‘“significantly more’ provided therein” (id.). Appellants maintain that “the
claims of the instant application pass, at least, the ‘meaningful limitations’
requirement” (id.). But, as the Examiner observes, Appellants describe the
invention in general terms “without directing the reader to any specific
limitations” that are sufficient to amount to “significantly more” (Ans. 9).
To the contrary, Appellants expressly state “[s]uch benefits, which may not
be explicitly claimed herein, are provided by implementations of the claims
and illustrate the ‘significantly more’ provided therein” (App. Br. 10
(emphasis added)). We agree with the Examiner that “features found
outside the scope of the claims cannot amount to ‘meaningful limitations'
because these features are not claimed in the included limitations” (Ans. 9).
Further referencing the “2014 Interim Guidance on Patent Subject
Matter Eligibility,” Appellants assert that the examples (in the Guidance) of
limitations not found to be enough to qualify as “significantly more” are
“notably different from each of the claims of the instant application” (App.
Br. 12). But the examples in the Guidance are just that — examples —
intended to provide guidance to the Examining Corps in examining claims
for compliance with § 101. There is nothing in the Guidance to indicate that
these examples are intended to be exhaustive, as opposed to providing a
broad framework within which an analysis of patent-eligibility should
appropriately be conducted.
We are not persuaded for the reasons set forth above that the
Examiner erred in rejecting claims 1, 3—10, and 12—21 under 35 U.S.C.
§101. Therefore, we sustain the Examiner’s rejection.
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Obviousness
Independent Claims 1, 10, and 18 and Dependent Claims 5—8, 11, 15—17,
and 20
Appellants argue independent claims 1,10, and 18 as a group (App.
Br. 13—17). We select claim 1 as representative. The remaining claims
stand or fall with claim 1. 37 C.F.R. §41.37(c)(l)(iv).
We are not persuaded by Appellants’ arguments that the Examiner
erred in rejecting claims 1, 10, and 18 under 35 U.S.C. § 103(a). Instead, we
agree with, and adopt the Examiner’s response to Appellants’ arguments as
set forth at pages 14—19 of the Answer. In particular, we agree with the
Examiner that Appellants’ arguments are not persuasive at least because
Appellants argue the references individually when the rejection is based on a
combination of references. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.”). Appellants argue that various claim features
are not disclosed or suggested in each individual reference. But Appellants
offer no persuasive argument or technical reasoning to explain why it would
not have been obvious to combine the cited references, as the Examiner
proposes, to arrive at the claimed invention.
We agree with Appellants that when a reference is cited as disclosing
a particular claim limitation, it is appropriate to present arguments aimed at
rebutting the presence of the claimed feature in the cited reference (Reply
Br. 4). But we cannot agree that the arguments in Appellants’ Appeal Brief
are only directed to that end. For example, Appellants argue that Paul does
not disclose “including the break-type work item in a work pool that
includes work items associated with customers” (App. Br. 14). Yet the
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Examiner clearly indicates in the Final Office Action that Xie, not Paul, is
cited as teaching the work pool aspects of the claims (Final Act. 6 (“Paul
does not expressly disclose work pool items in a contact center .... Xie
discloses a work pool in a contact center. . . .”)).
Addressing the Paul reference and further explaining the bases for the
obviousness rejection, the Examiner notes that Paul discloses varying
assembly tasks so as not to exceed a repetitive value threshold and that Paul
contemplates providing workers a break from an assigned task by assigning
an alternative task to replace the assigned task (Ans. 14—15 (citing Paul
110)). The Examiner, thus, explains that the “alternate tasks of Paul have
been considered as break[]-type work items because they provide the worker
a break from the originally assigned task” (id. at 15). The Examiner further
explains that although Paul does not expressly disclose tasks associated with
customers, “the assembly plant environment disclosed by Paul is implicitly
tied to customers” because manufacturing plants are utilized to produce
goods for customers and clients (id.).
In response, Appellants ostensibly argue that Paul’s alternative tasks
cannot constitute “break-type work items . . . associated with customers”
because “[t]he application of labor to goods, which will ultimately be sold, is
not associated with customers, but rather is associated with the item of
manufacture” (Reply Br. 5; see also App. Br. 14). But we agree with the
Examiner that the phrase “work items associated with customers” includes
tasks involved in the manufacture of goods to be sold to customers under a
broad, but reasonable, interpretation of the claim language (Ans. 15). See In
reAmer. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
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(during prosecution, claims are to be given their broadest reasonable
interpretation consistent with the specification).
Appellants further argue that Paul fails to disclose “comparing the one
or more attributes of the break-type work item with attributes of the plurality
of resources” and “selecting, based on the comparing step, a first resource
from the plurality of resources to receive the break-type work item, thereby
forcing the first resource to take a break for a predetermined amount of
time” (Reply Br. 5; see also App. Br. 14) because (1) “Paul fails to disclose
a break-type work item,” i.e., Paul discloses scheduling a certain number of
assembly tasks to a worker and then scheduling the worker to perform a
certain number of other assembly tasks (id.), and (2) “what Paul is
comparing is the aggregated repetitive value of a plurality of assigned tasks
to the repetitive threshold limit to determine if a different assembly task
should be assigned” (id.). Yet, as the Examiner explains in the Answer,
Large, not Paul, is relied on as disclosing a break-type work item indicating
a break off from work (Ans. 16). As for the “comparing” step, the Examiner
notes, and we agree, there is nothing in the claim language that indicates
what attributes may or may not be used in the comparison (id.). We fail to
see why, and Appellants do not adequately explain why, Paul’s disclosed
comparison of repetitive threshold value attributes and skills attributes when
assigning tasks fails to meet the claimed language.
Turning to Xie, Appellants argue that Xie does not disclose
“routing . . . .the break-type work item to the first resource, thereby forcing
the first resource to take a break for the predetermined amount of time”
(Reply Br. 6; see also App. Br. 15). But the Examiner explains that Xie
“was merely cited as teaching a contact center work pool and routing work
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having a predetermined amount of time”; Large, not Xie, was cited “as
disclosing a break-type work item indicating an obligatory break off from
work for a predetermined amount of time” (Ans. 17). We fail to see why or
in what way, and Appellants do not adequately explain why or in what way,
the Examiner’s findings are unreasonable or unsupported.
Addressing Large, Appellants assert that the “anti-fatigue break” in
Large is not “a break [from work] for the predetermined amount of time,” as
recited in claim 1, but rather “a work task the user is required to perform or
be subject to work-defined activities, for example, aromatherapy, such as to
present the user with the smell of wood smoke, an image of a Yule tide log,
and the sound of a fire crackling” (Reply Br. 6—7 (citing Large 36); see
also App. Br. 15—16). However, as the Examiner correctly observes, Large
explicitly characterizes these activities, which are performed during the
predetermined anti-fatigue period, as “non-task related stimulus” (Ans. 18).
In other words, the worker is not performing any work.
Appellants quote paragraph 34 of Large, in part,3 and argue that Large
does not disclose “routing . . . the break-type work item to the first resource,
thereby forcing the first resource to take a break for the predetermined
amount of time” because “Large teaches an extra step [i.e., generation of a
signal by clicking a mouse button] required for a user to resume disabled
3 This portion of paragraph 34 of Large reads:
This is to say the user (10) is diverted from work. Such a
diversion may be underpinned by use of a Soft Disable
function in which input functionality is impeded but easily
and quickly reactivated by the use of a signal generated as if
by a mouse (14) button. This may be according to step (116)
disabling the users keyboard until the user (10) clicks their
mouse (14).
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computer functionality” (Reply Br. 7; see also App. Br. 16). Yet that
argument is not persuasive at least because paragraph 34 also explicitly
states that “[i]f the signal is not given then the input function is
automatically re-enabled upon completion of stage one” (see Ans. 18).
Addressing Mcllwaine, Appellants argue that Mcllwaine does not
disclose the claimed break-type work item because the breaks in Mcllwaine
are for performing training activities (Reply Br. 7; App. Br. 16—17).
However, the Examiner cites Mcllwaine, not as disclosing a break-type
work item indicating an obligatory break off from work for a predetermined
amount of time, but rather as merely disclosing that a break-type work item
is generated prior to the recipient of the work item being known, i.e.,
“wherein the break-type work item is generated prior to the recipient of the
break-type work item becoming known,” as recited in claim 1 (Ans. 19).4
The Examiner further concludes that the training tasks of Mcllwaine are
“break-type work items in that they represent a break from ordinary work
tasks” (id.). We fail to see why or in what way, and Appellants do not
adequately explain why or in what way, the Examiner’s findings are
unreasonable or unsupported.
Appellants further argue that the modification of Paul with Xie, Large,
and Mcllwaine is improper “as such a combination would, ‘render the prior
4 Mcllwaine is directed to a method for scheduling spontaneous training
breaks during periods of low workload volume in a call center (Mcllwaine
114). The training system monitors the workload volume for periods of low
call volume and takes advantage of low workload periods by assigning
training breaks to idle agents (id.). Based on the agent most in need of
training, the training system can select which agent should receive a
spontaneous training break (id.; see also id. 146).
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art invention being modified unsatisfactory for its intended purpose, then
there is no suggestion or motivation to make the proposed modification’”
(App. Br. 20 (citing MPEP §2143.01 (V)). That argument is not persuasive
at least because it is based on the bodily incorporation of the features of Xie,
Large, and Mcllwaine into the Paul system, which is not the test for
obviousness. Instead, the test is what the combined teachings of these
references would have suggested to a person of ordinary skill in the art.
See In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Sneed,
710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the
inventions of the references be physically combinable to render obvious the
invention under review.”); In re Nievelt, 482 F.2d 965, 968 (CCPA 1973)
(“Combining the teachings of references does not involve an ability to
combine their specific structures.”).
In the absence of persuasive arguments or technical reasoning to
explain why the motivation set forth by the Examiner is insufficient or why
the modification described by the Examiner is more than the predictable use
of prior art elements according to their established functions, we are not
persuaded of error on the part of the Examiner.
Therefore, we sustain the Examiner’s rejection under 35 U.S.C.
§ 103(a) of claim 1, and claims 10 and 18, which fall with claim 1. We also
sustain the Examiner’s rejection of dependent claims 5—8, 11, 15—17, and 20,
which are not argued separately.
Dependent Claims 3 and 12
Claim 3 depends from independent clam 1, and recites that “the first
resource is forced to take a break from work items of a first media type but
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not [from] work items of a second media type.” Claim 12 depends from
independent claim 10, and includes substantially similar language.
In rejecting claims 3 and 12 under 35 U.S.C. § 103(a), the Examiner
relies on Paul as disclosing functionality for forcing a worker to take a break
from a first type of work but not from a second type of work (Final Act. 10).
However, the Examiner acknowledges that Paul does not expressly disclose
multiple media types, and cites Xie to cure the deficiency of Paul {id.). The
Examiner then concludes that, because both references are directed to
distributing work, a person of ordinary skill in the art would have recognized
that applying different media types to Paul would have resulted in an
improved system that would allow more detailed analysis and increased
distribution efficiency (id. at 10-11).
Appellants note that Paul teaches scheduling assembly tasks so as not
to exceed a repetition threshold and that Xie teaches routing calls to agents
based on an attribute of the caller on hold (App. Br. 17). And Appellants
summarily assert that “Paul and Xie are both silent as to causing an agent to
take a break from a first media type and not a second media type.”
Appellants’ assertion does not rise to the level of a substantive
argument for patentability. For example, Appellants present no persuasive
argument or technical reasoning to explain why the Examiner’s findings are
unreasonable or unsupported or why the references cannot be properly
combined, as the Examiner proposes. Cf. In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) (holding that the Board reasonably interpreted 37 C.F.R.
§ 41.37(c)(l)(vii) as requiring “more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art”).
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Therefore, we sustain the Examiner’s rejection of claims 3 and 12
under 35 U.S.C. § 103(a).
Dependent Claims 5, 14, and 21
Appellants argues dependent claims 5, 14, and 21 as a group (App.
Br. 18). We select claim 5 as representative. Claims 14 and 21 stand or fall
with claim 5. 37 C.F.R. §41.37(c)(l)(iv).
Appellants argue that the Examiner erred in rejecting claim 5 under
§ 103(a) because Paul, on which the Examiner relies, does not disclose
“determining a current rate at which break-type work items are being
generated,” as recited in claim 5, because (1) Paul does not disclose break-
type work items, as called for in the claim; and (2) even if Paul disclosed
break-type work items, the claimed “current rate” would always be zero
because Paul’s teaching is limited to the development of a work schedule
(App. Br. 18).
Appellants’ first argument is not persuasive because although
Appellants summarily assert that Paul does not disclose break-type work
items, Appellants present no persuasive arguments or technical reasoning to
explain why the Examiner’s interpretation of Paul’s alternate tasks as break-
type work items is unreasonable and/or unsupported. Cf. In re Lovin,
652 F.3d at 1357.
Appellants’ second argument fails because it is not responsive to the
Examiner’s rejection. In rejecting claim 5, the Examiner cites paragraphs 10
and 35 of Paul as disclosing the argued limitation (Final Act. 11). In this
regard, the Examiner notes that Paul discloses a first schedule of task
assignments and further discloses that a revised schedule is generated, based
on the first schedule (i.e., the known repetitive rate of tasks), such that the
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repetitive value threshold is not exceeded (id.). The Examiner, thus, relies
on the development of the revised schedule as reflecting the rate at which
break-type work items, i.e., alternate tasks, are being generated. Appellants
do not present any persuasive arguments or technical reasoning to explain
why the Examiner’s position is unreasonable or unsupported.
Therefore, we will sustain the Examiner’s rejection under 35 U.S.C.
§ 103(a) of claim 5, and claims 14 and 21, which fall with claim 5.
Dependent Claim 9
Claim 9 depends from independent clam 1, and recites that “the first
resource is an agent operating a communication device and the break-type
work item relieves the agent from handling at least one of real-time and
near-real-time contacts for the predetermined amount of time.”
Appellants argue that neither Paul nor Xie discloses break-type work
items indicating a break off from work and that “[t]o read Paul as now
disclosing a more narrowed break-type work item [as recited in claim 9]
fails to logically follow from an absence of any break-type work item” (App.
Br. 18—19). Appellants’ argument is not persuasive at least because it is not
responsive to the Examiner’s rejection.
The Examiner relies on Paul as disclosing break-type work items, i.e.,
alternate tasks that represent breaks from performing an initially assigned
task repetitively (see, e.g., Ans. 21). And the Examiner cites Large as
disclosing a break-type work item indicating a break off from work (id.).
Appellants do not present any persuasive arguments or technical reasoning
to explain why the Examiner’s position is unreasonable or unsupported.
Therefore, we sustain the Examiner’s rejection of claim 9 under
35 U.S.C. § 103(a).
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Dependent Claim 13
Claim 13 depends from independent clam 10, and recites, inter alia,
that “the one or more attributes include an attribute that defines a desired
target for the break-type work item.”
In rejecting claim 13 under § 103(a), the Examiner cites Paul as
disclosing that attributes of an agent (e.g., that the agent recently handled a
profitable work or recently handled a difficult work item) define a desired
target and cause a break-type work item to be routed to that agent (Final
Act. 14—15 (citing Paul H 36 and 39)).
Appellants summarily assert that claim 13 is allowable because “Paul
is silent to the claimed, ‘desired target for the break-type work item,’ as well
as such a target being an agent who recently handled a difficult work item”
(App. Br. 19). But Appellants present no persuasive arguments or technical
reasoning to support that position or to otherwise explain why the
Examiner’s position is unreasonable and/or unsupported.
Therefore, we sustain the Examiner’s rejection of claim 13 under
35 U.S.C. § 103(a).
Dependent Claim 19
Claim 19 depends from independent clam 18, and recites that “the
work assignment engine is configured to consider every work item and
break-type work item in the work pool every time a resource in the resource
pool becomes available.”
Appellants state that they disagree with “the Examiner’s assertion that
‘Paul discloses a system for assigning work items that include work break
items,”’ and summarily assert that claim 19 is allowable (App. Br. 19).
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Appellants’ assertion does not rise to the level of a substantive
argument for patentability. Cf. In re Lovin, 652 F.3d at 1357. Nor for that
matter is it responsive to the Examiner’s rejection. The Examiner cites Xie
as disclosing that “the work assignment engine is configured to consider
every work item and break-type work item in the work pool every time a
resource in the resource pool becomes available,” as recited in claim 19.
In view of the foregoing, we sustain the Examiner’s rejection of
claim 19 under 35 U.S.C. § 103(a).
Dependent Claim 4
Claim 4 depends from independent clam 1, and recites that
the one or more attributes include a team attribute which causes
the break-type work item to be routed to at least a second
resource at the same time that the break-type work item is routed
to the first resource, thereby enabling the first and at least a
second resource to take a coordinated break
Appellants first incorporate by reference their arguments with respect to
independent claims 1,10, and 18 — arguments that we find unpersuasive for
the reasons set forth above (App. Br. 21). Then, noting that “Dorenbosch
discloses a communication system whereby one message may be received
by members of previously established call group {id. (citing Dorenbosch
127)), Appellants summarily assert that claim 4 is allowable because “[t]he
required, ‘thereby enabling the first and at least second resource to take a
coordinated break,’ is not taught nor reasonably suggested in the art of
record” {id.). That argument is not persuasive at least because Appellants’
assertion does not rise to the level of a substantive argument for
patentability. Cf. In re Lovin, 652 F.3d at 1357.
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Appeal 2016-000974
Application 13/408,793
We also are not persuaded of Examiner error by Appellants’ further
argument that the combination of Paul, Xie, Large, Mcllwaine and
Dorenbosch is improper (App. Br. 22). Appellants assert that modifying
Paul to include the teachings of Xie, Large, Mcllwaine and Dorenbosch, as
the Examiner proposes, would change the principle of operation of Paul that
assembly tasks be scheduled for workers to perform without exceeding a
repetitive threshold {id.). But Appellants present no persuasive argument or
technical reasoning to support that position.
Appellants also do not explain how or why Xie would be rendered
inoperable if combined with Dorenbosch’s group call {id.). As the Examiner
observes, Xie is relied on as disclosing work pools and routing work; “the
teachings of Xie would function the same whether the agent was acting
individually or as part of a group because pooling work and routing work
would remain unchanged” (Ans. 26).
In view of the foregoing, we sustain the Examiner’s rejection of
claim 4 under 35 U.S.C. § 103(a).
DECISION
The Examiner’s rejection of claims 1, 3—10, and 12—21 under
35 U.S.C. § 101 is affirmed.
The Examiner’s rejections of claims 1, 3—10, and 12—21 under
35 U.S.C. § 103(a) are affirmed.
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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