Ex Parte Nimmagadda

Patent Trial and Appeal Board

Aug 30, 2016

13155054 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/155,054 06/07/2011
136582 7590 09/01/2016
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
FIRST NAMED INVENTOR
Krishna Nimmagadda
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
411096-US-NP/AVA029PA 2224
EXAMINER
MARCUS, LELAND R
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
09/01/2016 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):
pto@sspatlaw.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 KRISHNA NIMMAGADDA
Appeal2014-006575
Application 13/155,0541
Technology Center 3600
Before HUBERT C. LORIN, JOSEPH A. FISCHETTI, and
BRUCE T. WIEDER, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Krishna Nimmagadda (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-20. We have jurisdiction under 35
U.S.C. § 6(b) (2002).
SUMMARY OF DECISION
We AFFIRM but denominate the affirmed rejection as a NEW
GROUND OF REJECTION.
1 The Appellant identifies Avaya, Inc., as the real party in interest. Br. 4.
Appeal2014-006575
Application 13/155,054
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method to assign new work to one of a plurality of contact
center agents, near the end of a work shift of at least one contact
center agent, comprising:
receiving, via a receiver configured to interface with a
communications channel from a customer to a contact center, a
request for new work;
determining, by a determination module of a processor, a
remaining time in a work shift for one or more of the plurality
of contact center agents;
assigning a contact center agent priority for one or more
of the plurality of contact center agents by use of a
predetermined criteria;
demoting the contact center agent priority of contact
center agents near an end of a work shift; and
assigning the new work to a contact center agent by use
of contact center agent priority.
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Erhart
Ehrman
US 2005/0069119 A 1
US 2009/0099898 Al
The following rejection is before us for review:
Mar. 31, 2005
Apr. 16, 2009
Claims 1-20 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Erhart and Ehrman.
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ISSUE
Did the Examiner err in rejecting claims 1-20 under 35 U.S.C.
§ 103(a) as being unpatentable over Erhart and Ehrman?
FINDINGS OF FACT
We rely on the Examiner's factual findings stated in the Answer.
Additional findings of fact may appear in the Analysis below.
ANALYSIS
The Appellant argued the three independent claims (method claim 1
and system claims 9 and 17) as a group. See App. Br. 9-14. We select
claim 1 as the representative claim for this group, and the remaining claims
9 and 17 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Claim 1 is drawn to a prioritization scheme. Generally speaking,
claim 1 defines a method for giving priority to those contact center agents
not near an end of a work shift when new work is assigned.
Specifically, claim 1 presents a series of steps whereby (a) a request
for new work is received; (b) a remaining time in a work shift for a contact
center agent is determined; ( c) a contact center agent priority for one or more
of the plurality of contact center agents is assigned by use of a
predetermined criteria; ( d) the contact center agent priority of contact center
agents near an end of a work shift is demoted; and ( e) the new work is
assigned to a contact center agent by use of the contact center agent priority.
Of these 5 steps only, the first and second steps involve a device. The
first step of "receiving" is performed "via a receiver configured to interface
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Application 13/155,054
with a communications channel from a customer to a contact center"
(claim 1) and the second step of "determining" is performed "by a
determination module of a processor" (claim 1 ). The other 3 steps of
"assigning," "demoting," and "assigning" are unconnected to any device.
They reasonably broadly cover mental steps.
Taking a closer look at the first two steps, we observe that the
"receiver configured to interface with a communications channel" and the
"module of a processor" there recited are conventional. See, e.g., Spec.,
paras. 37--40. And there is insufficient evidence showing that these
conventional devices are functionally affected by performing their respective
steps (a) and (b). The "receiver configured to interface with a
communications channel" and "module of a processor" appear to perform as
they are known and expected to do.
Also, a careful reading of the first two steps reveals that they do no
more than process information. Step (a) calls for a "receiver configured to
interface with a communications channel from a customer to a contact
center" to receive "a request for new work." Said "request for new work" is
information, albeit distinguished by a particular descriptive content. Step (b)
calls for a "determination module of a processor" to determine "a remaining
time in a work shift for one or more of the plurality of contact center
agents." Said "remaining time ... " is also information, albeit distinguished
by a second particular descriptive content.
Putting it together, claim 1 reasonably broadly covers using a known
"receiver configured to interface with a communications channel" and a
known "module of a processor" to receive a first type of information and
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determine a second type of information, respectively, and then performing 3
mental steps.
Turning now to the rejection, according to the Examiner, Ehrman
discloses all the subject matter claimed but for "a customer service call
center embodiment" (Final Act. 3), for which Erhart is relied upon. The
Examiner finds that it would have been obvious to substitute the call center
embodiment of Erhart for the generic worker embodiment of Ehrman. Final
Act. 3.
Importantly, the Examiner found that the two devices-the known
"receiver configured to interface with a communications channel from a
customer to a contact center" and the known "determination module of a
processor" - are disclosed in Ehrman at paragraphs 214 and 103,
respectively. Final Act. 2. This finding is not challenged. Nor do we see
that the Appellant has challenged the finding that Ehrman discloses using
said devices to perform the receiving and determining steps as reasonably
broadly construed, respectively. That Ehrman discloses using said devices
to perform the receiving and determining steps to receive a first type of
information and determine a second type of information, respectively, has
not been disputed.
Rather, the Appellant challenges the propriety of the combination of
Ehrman, which discloses an asset management system for, for example,
mobile assets such as forklifts, and Erhart, which discloses providing a more
accurate estimate as to time for completion of a call by an agent at a call
center, to find the claimed method obvious. The principal argument is "that
modifying Ehrman by the teachings of Erhart would change the principle of
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Application 13/155,054
operation of Ehrman, and therefore it is nonobvious to combine Ehrman and
Erhart, and therefore no motivation to combine the references." Br. 12.
According to the Appellant, "Ehrman assigns incoming work to one of a
group of fungible workers. The goal is optimizing usage of the
workers .... In contrast, ... Erhart assigns work to agents who have
individual skills. The agents in Erhart are not fungible." Id.
The argument is unpersuasive. The argument for patentability puts a
misplaced focus on the different types of workers mentioned in the prior art
references, the inference being that the claim limitation "contact center
agent" carries patentable weight.
The claim limitation "contact center agent" is mentioned in four of the
five steps.
In the first step, "contact center" is mentioned but that represents an
intended use of the known "receiver device" ("a receiver configured to
interface with a communications channel from a customer to a contact
center" (claim 1) ). Alone an intended use does not serve to distinguish
structure over the prior art. Cf In re Spada, 911 F.2d 705, 15 USPQ2d 1655
(Fed. Cir. 1990).
In the second step, the "contact center agent" limits only the
information being processed. Specifically, the "determination module of a
processor" determines information, albeit information that has a certain type
of content; that content being "a remaining time in a work shift for one or
more of the plurality of contact center agents." (Emphasis added.)
There is insufficient evidence that "a remaining time in a work shift
for one or more of the plurality of contact center agents" (emphasis
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added) functionally affects the "determination module of a processor." The
evidence (i.e., Spec., para. 38) of known modules would appear to weigh
heavily to the contrary. Accordingly, it is reasonable to characterize "a
remaining time in a work shift for one or more of the plurality of contact
center agents" as printed matter. Given that printed matter is not given
patentable weight, the implied argued-over "contact center agents" claim
limitation as a distinction between the Appellant's method and that which
Ehrman and Erhart describe is not patentably consequential. It amounts to
nonfunctional descriptive material. "Thus non-functional descriptive
material, being useful and intelligible only to the human mind, is given no
patentable weight." Ex parte Graf, Appeal 2012-003941, 2013 WL
3873066, at *4 (PTAB July 23, 2013) (non-precedential), aff'd, In re Graf,
585 F. App'x. 1012 (Fed. Cir. 2014) (non-precedential); cf In re DiStefano,
No. 2015-1453 (Fed. Cir. 2015); as explained in In re Xiao, 462 F. App'x.
947, 950-52 (Fed. Cir. 2011) (non-precedential):
[T]he Board did not create a new "mental distinctions" rule in
denying patentable weight . . . . On the contrary, the Board
simply expressed the above-described functional relationship
standard in an alternative formulation---consistent with our
precedents-when it concluded that any given position label's
function . . . is a distinction "discemable only to the human
mind." Board Decision at 6; see In re Lowry, 32 F.3d 1579, 1583
(Fed. Cir. 1994) (describing printed matter as "useful and
intelligible only to the human mind") (quoting In re Bernhart,
417 F.2d 1395, 1399 (CCPA 1969)).
"The rationale behind this line of cases is preventing the indefinite patenting
of known products by the simple inclusion of novel, yet functionally
unrelated limitations." King Pharms., Inc. v. Eon Labs, Inc., 616 F.3d 1267,
1279 (Fed. Cir. 2010).
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In the remaining three steps, the claim limitation "contact center
agent" affects only the degree to which the mental steps are exercised.
As we have pointed out, said three steps are not required to be performed via
a device. They add to the claimed subject matter nothing more than steps
which could be performed in the human mind. The distinction between
these steps over the prior art, notwithstanding they involve "contact center
agents," is one that is "useful and intelligible only to the human mind."
Lowry, 32 F.3d at 1583 (quoting In re Bernhart, 417 F.2d 1395, 1399 (Fed.
Cir. 1969) ). Such a distinction carries no patentable weight. As already
noted, "[t]he rationale behind this line of cases is preventing the indefinite
patenting of known products by the simple inclusion of novel, yet
functionally unrelated limitations." King Pharms., Inc., 616 F.3d at 1279.
For the foregoing reasons, the Appellant's argument focusing on the
different types of workers mentioned in the prior art references is
unpersuasive as being based on a misplaced focus on a patentably
inconsequential limitation.
The Appellant also argued that the Examiner's reliance on Official
Notice is improper. We are unpersuaded by this argument. Neither the
statement of the rejection nor the discussion of the rejection as set forth in
the Final Action and repeated in the Examiner's Answer, which are under
appeal, make any mention of taking Official Notice.
Finally, the Appellant draws our attention to claims 3 and 18 and
claims 6 and 14, arguing that the subject matter they define patentably
distinguish over Ehrman. Br. 14--15. However, the subject matter of these
claims are unconnected to any device. They further limit the claimed subject
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matter only in terms of what the human mind should perform. As we have
stated, such a distinction carries no patentable weight. Accordingly, the
argument is unpersuasive as to error in the rejection.
The rejection is affirmed. However, we recognize that our reasoning
departs from that of the Examiner, especially in including an extensive claim
construction analysis. Thus, though we affirm the rejection, we denominate
it as a new ground of rejection.
DECISION
The decision of the Examiner to reject claims 1-20 is affirmed, but
the affirmed rejection under§ 103 is denominated as a new ground of
rejection.
NEW GROUND
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the examiner, in which event the
proceeding will be remanded to the examiner ....
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(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record ....
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED; 37 C.F.R. § 41.50(b)
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