Ex Parte Griffin

Patent Trial and Appeal Board

Oct 9, 2013

11777571 (P.T.A.B. Oct. 9, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOHN DANIEL GRIFFIN
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Appeal 2011-011294
Application 11/777,571
Technology Center 3600
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Before: JOSEPH A. FISCHETTI, MEREDITH C. PETRAVICK, and
MICHAEL W. KIM, Administrative Patent Judges.

KIM, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/777,571

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STATEMENT OF CASE
Appellant seeks our review under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-3 and 7-15. We have jurisdiction
under 35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
We AFFIRM-IN-PART.

BACKGROUND
Appellant’s invention is directed to an automated technique for setting
a wage for call center personnel. (Spec. 1:6-7).
Claim 1, reproduced below, is representative of the subject matter on
appeal:
1. A computer program product for dynamically setting a wage
offered to a multiplicity of inactive call center personnel, the
computer program product comprising:
a computer-readable, tangible storage device;
first program instructions to automatically estimate a wait
time for a plurality of active call center personnel to handle
calls to a call center;
second program instructions to automatically determine
and set a wage, based in part on the estimated wait time, to
offer to inactive call center personnel to become additional,
active call center personnel to handle calls to the call center;
and
third program instructions, responsive to a request by one
of the inactive call center personnel to become active at the
wage, to automatically designate the one requesting inactive
call center personnel as active at the wage and assign a call at
the wage to the one requesting inactive call center personnel
that has been designated as active; and wherein
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the first, second and third program instructions are stored
on the computer-readable, tangible storage device.

THE REJECTIONS
The following rejection is before us for review: Claims 1-3 and 7-15
are rejected under 35 U.S.C. § 103(a) as unpatentable over Silvera (US
2007/0276722 A1, pub. Nov. 29, 2007), Shtivelman (US 2002/0060988 A1,
pub. May 23, 2002), and Johri (US 2008/0147470 A1, pub. Jun. 19, 2008).

FACTUAL FINDINGS
We find that the following enumerated findings of fact (FF) are
supported by at least a preponderance of the evidence. Additional facts may
appear in the Analysis section.
1. The Specification describes examples of two ways to estimate wait
time, stating:
For example, program 48 can estimate the current call center
wait time for each skill type by counting the number of waiting
calls in each skill-based queue and multiplying the number of
waiting calls in each skill-based queue by the average time to
handle the respective type of call, and dividing the result by the
number of enrolled active call takers assigned to that queue.
Alternately, program 48 can estimate the current call center
wait time for each skill type by tracking and averaging the
actual wait time for calls to each skill type during the last
predetermined period.
(Spec. 9:7-13).
2. The Specification describes by example that “inactive call center
personnel can join the pool and become active to receive and handle
calls.” (Spec. 7:12-14).
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3. Silvera discloses several example methods to estimate wait time,
including “monitoring the average call handling time of an agent.”
(Para. [0047]).
4. Shtivelman discloses that “[w]ait time is a function of an agent's skill
level in responding to communications in such sessions, and reflects the
time it takes, on average, for an agent to respond to a communication.”
(Para. [0034]).
5. Silvera discloses step 206 at which achievement values are associated
with performance levels, such as “average call handing time.” (Para.
[0042]).
6. Silvera discloses step 208 at which a wage is set based on performance
levels an agent must achieve to earn that wage. (Para. [0044]).

ANALYSIS
Claims 1, 7, and 13
Each of independent claims 1, 7, and 13 recite language substantially
identical to “instructions to automatically estimate a wait time for a plurality
of active call center personnel.” The Specification does not explicitly define
“wait time,” but describes by example that it may be estimated in different
ways. (FF 1). The Specification also does not define or describe the
meaning of “active” or “inactive,” but describes that inactive personnel may
“join the pool and become active to receive and handle calls” (FF 2), so we
construe “active” as handling a call and “inactive” as not currently handling
a call.
We are not persuaded by Appellant’s argument that Silvera discloses
monitoring performance of an employee compared to performance metrics
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and adjusting compensation, but “this is based on the individual performance
of the employee, and not the estimated wait time for a plurality of active call
center personnel to handle calls to a call center.” (App. Br. 14, 21; see also
Reply Br. 2-4). Claim 1 requires the program instructions to “automatically
estimate a wait time for a plurality of active call center personnel,” but
neither the claim nor the Specification limit or define the method by which
such an estimate is made. We agree with the Examiner that the
... claim requires only estimating a wait time for a plurality of
active personnel and does not require an average wait time
where the average is taken by summing the wait time of all
active agents and dividing the sum by the number of active
agents. The broadest reasonable interpretation of the “estimate”
could be as simple as looking at a single agent's wait time and
considering it the estimate for all working agents.
(Ans. 18-19). Given the broad meaning of “estimate,” one of ordinary skill
would recognize that Silvera discloses one method for estimating the wait
time for a plurality of agents by calculating, for example, the average wait
time for one agent (FF 3), and using it as the wait time estimate for a
plurality of agents, thus meeting the claim language. See KSR Int'l. Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (In making the obviousness
determination one “can take account of the inferences and creative steps that
a person of ordinary skill in the art would employ.”)
We are not persuaded by Appellant’s argument that Shtivelman
discloses monitoring an agent relative to upper and lower thresholds and
making adjustments to load, but “this does not set a wage based on
estimated wait time for a plurality of active call center personnel ....” (App.
Br. 14, 21; see also Reply Br. 4-6).
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The claim language requires setting a wage “based in part on the
estimated wait time.” Thus, we construe that wait time is but one element in
determining and setting a wage, with the wage also based on other factors.
Shtivelman discloses that wait time is related to agent performance (FF 4),
and Silvera discloses setting a wage based on agent performance levels (FF
5, 6). The combination therefore discloses setting a wage based in part on
the estimated wait time, because agent performance and wait time are
interrelated: the wait time for a customer to get to an agent is less when the
performance of the agent is higher.
We are finally not persuaded by Appellant’s argument that Silvera
sets the wage for the same person based on their performance, not for
“inactive” personnel, as claimed. (Reply Br. 9). Silvera calculates a wage
based on performance, and offers it to all employees meeting the
performance level, thus meeting the claim language by encompassing both
active and inactive personnel. (FF 6).
For these reasons, we sustain the rejection of claims 1, 7, and 13.
Claim 10
Unlike claims 1, 7, and 13, independent claim 10 does not recite steps
for setting a wage. Claim 10 recites estimating a wait time, but this wait
time serves no function within the scope of claim 10. Claim 10 further
recites offering inactive personnel to become active, and assigning them a
wage. Claim 10 is not specifically argued separately, but is argued together
with claim 1. (App. Br. 8, Reply Br. 2, 7). However, the scope of claim 10,
though similar to claim 1, is broader than that of claim 1, because of the lack
of a wage setting limitation. In addition, the portions of claim 1 for which
arguments are presented as to the limitation of setting a wage fail because
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the limitation is not present in the claim. Finally, the argument related to
estimating a wait time is unpersuasive for the same reasons set forth above
for claim 1.
For these reasons, we sustain the rejection of claim 10.
Dependent claims 2, 3, 8, 9, 11, 12, 14, and 15
Each of claims 2, 8, 11, and 14 recite setting a wage higher than a
wage from a prior interval in which the wait time was lower than a
threshold. Each of claims 3, 9, 12, and 15 recite setting a wage lower than a
wage from a prior interval in which the wait time was greater than a
threshold.
We are persuaded by Appellant’s argument that the combination does
not disclose the limitations of these dependent claims. (App. Br. 20, 22).
The claims recite that for longer wait times, the wage is increased. But, in
Silvera and Shtivelman, the longer the wait time, the lower the performance
of the agent, and thus the lower the wage. The combination therefore does
not meet the claim language. For this reason, we reverse the rejection of
claims 2, 3, 8, 9, 11, 12, 14, and 15.

DECISION
The Examiner’s rejection under 35 U.S.C. § 103(a) of claims 1, 7, 10,
and 13 is affirmed.
The Examiner’s rejection under 35 U.S.C. § 103(a) of claims 2, 3, 8,
9, 11, 12, 14, and 15 is reversed.
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).

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AFFIRMED-IN-PART

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