Ex Parte Nowak et al

Patent Trials and Appeals Board

Apr 29, 2019

14082858 - (D) (P.T.A.B. Apr. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/082,858 11/18/2013
136582 7590 05/01/2019
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
FIRST NAMED INVENTOR
DawidNowak
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.
413147-US-NP
AVA078PA
2697
EXAMINER
ULLAH,ARIF
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
05/01/2019 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 DAVID NOW AK, JOSEPH SMYTH,
and PAUL KELLY
Appeal2017-007999
Application 14/082,85 81
Technology Center 3600
Before MICHAEL J. STRAUSS, JEREMY J. CURCURI, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's final decision rejecting claims 1, 2, 4--14, and 16-21, the only
claims pending in the application. 2 We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 Avaya, Inc. ("Appellant") is the Applicant, as provided for under 37
C.F .R. § 1.46, and is also identified in the Brief as the real party in interest.
See Appeal Br. 4.
2 Claims 3 and 15 are cancelled. See Appeal Br. 6.
Appeal2017-007999
Application 14/082,858
STATEMENT OF THE CASE
Invention
Appellant's invention relates to "predicting contact center activity
and adjusting operational parameters of the contact center based on such
predictions." Spec. ,r 2. 3
Exemplary Claim
Claim 1 is reproduced below with bracketed material added.
1. A system comprising:
[a] a processor coupled to memory, wherein the
processor executes program code stored in the memory to
implement:
[b] a traffic generator that generates simulated,
predictive contact center traffic patterns based upon data
received from a corresponding contact center that
represents current contact traffic that has entered the
contact center, and based upon historical contact center
data from an aggregated historical data source;
[ c] a contact center emulator that emulates the
corresponding call center and generates a forecast of
contact center behavior by correlating:
[ d] a current state of operational data
received from the corresponding contact center so
that the emulation mirrors the current operation of
the contact center;
[ e] the simulated, predictive traffic patterns
from the traffic generator; and
3 Our Decision refers to: ( 1) Appellant's Specification filed November 18,
2013 ("Spec."); (2) the Final Rejection mailed May 9, 2016 ("Final Act.");
(3) the Appeal Briefs filed October 20 and December 7, 2016 ("Appeal
Br."); (4) the Examiner's Answer mailed March 10, 2017 ("Ans."); and (5)
the Reply Brief filed May 8, 2017 ("Reply Br.").
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[ fJ historical data from the aggregated
historical data source; and
[g] a control unit that evaluates the generated
forecast received from the contact center emulator in
view of the current state of operational data received
from the corresponding contact center and determines in
response to the evaluation, whether to execute a
predefined action that communicates back to the contact
center.
Appeal Br. 33, Claims Appendix.
REFERENCES
The Examiner relies upon the following prior art4 in rejecting the
claims on appeal:
Kosiba
Carrier
Galvin
Riahi
US 2002/0184069 Al
US 8,078,529 B 1
US 2013/0191185 Al
US 2014/0314225 Al
REJECTIONS
Dec. 5, 2002
Dec. 13, 2011
July 25, 2013
Oct. 23, 2014
Claims 1, 2, 4--14, and 16-21 stand rejected under 35 U.S.C. § 101 as
being directed to a judicial exception without adding significantly more. See
Final Act. 5-10.
Claims 1, 2, 4, 5, 7-14, 16-19, and 21 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over the combination of Kosiba and Galvin.
See Final Act. 10-37.
Claim 6 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Kosiba, Galvin, and Carrier. See Final Act. 37--41.
4 All citations to the references use the first-named inventor only.
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Claim 20 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Kosiba, Galvin, and Riahi. See Final Act. 41--43.
Our review in this appeal is limited to the above rejections and the
issues raised by Appellant. Arguments not made are waived. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (2016).
DISCUSSION
Re;ection Under 35 U.S. C. § 1 OJ
Standard for Patent Eligibility
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: "[l]aws of nature, natural phenomena, and abstract
ideas" are not patentable. E.g., Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court's two-step framework, described in Mayo
and Alice. Alice, 573 U.S. at 217-18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with
that framework, we first determine what concept the claim is "directed to."
See Alice, 573 U.S. at 219 ("On their face, the claims before us are drawn to
the concept of intermediated settlement, i.e., the use of a third party to
mitigate settlement risk."); see also Bilski v. Kappas, 561 U.S. 593, 611
(2010) ("Claims 1 and 4 in petitioners' application explain the basic concept
of hedging, or protecting against risk.").
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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, 561 U.S. at 611 );
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594--95 (1978)); and
mental processes (Gottschalkv. 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))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 U.S. at 176; see also id. at 191 ("We
view respondents' claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula."). Having
said that, the Supreme Court also indicated that a claim "seeking patent
protection for that formula in the abstract ... is not accorded the protection
of our patent laws,[] and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment." Id. ( citing Benson and Flook); see, e.g., id. at 187 ("It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.").
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If the claim is "directed to" an abstract idea, we tum to the second
step of the Alice and Mayo framework, where "we must examine the
elements of the claim to determine whether it contains an 'inventive
concept' sufficient to 'transform' the claimed abstract idea into a patent-
eligible application." Alice, 573 U.S. at 221 ( quotation marks omitted). "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]."' Id. ( quoting Mayo, 566 U.S. at 77).
"[M]erely requir[ing] generic computer implementation[] fail[ s] to transform
that abstract idea into a patent-eligible invention." Id.
USPTO January 7, 2019 Revised Section 1 OJ Memorandum
The USPTO recently published revised guidance on the application of
§ 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019 ("Memorandum")). Under the Memorandum
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 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, do we then look to
whether the claim:
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(3) adds a specific limitation beyond the judicial
exception that is not "well-understood, routine,
conventional" in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, and
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial
exception.
Analysis
Appellant argues the claims as a group. See Appeal Br. 17. We select
independent claim 1 as exemplary of Appellant's arguments for the group.
See 37 C.F.R. § 4I.37(c)(1)(iv)(2016).
The Examiner determines "the claimed invention is directed to a
judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract
idea) without significantly more." Final Act. 5.
Appellant presents several arguments against the section 101
rejection. Applying the guidance set forth in the Memorandum, we are not
persuaded of Examiner error for the reasons discussed below. We adopt the
nomenclature for the analysis steps used in the Memorandum.
STEP 1
Section 101 provides that "[ w ]hoever invents or discovers any new
and useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof, may obtain a patent therefor, subject to
the conditions and requirements of this title." 35 U.S.C. § 101. Initially, we
determine that independent claim 1 recites "[a] system." Appeal Br. 33. As
such, claim 1 is directed to a statutory class of invention within 35 U.S.C.
§ 101, i.e., a machine.
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STEP 2A Prong 1
Under Step 2A, Prong 1 of the Memorandum, we must determine
whether claim 1, being directed to a statutory class of invention, nonetheless
falls within a judicial exception.
The Examiner determines claim 1 recites "collecting metric data
associated with a contact center," which is "analogous to organizing
information through mathematical correlations" and is, thus, "a mental
process." Final Act. 5.
Appellant argues that claim 1 is not directed to an abstract idea
because claim 1: (1) recites "[ d]ata is being generated for emulations and
forecasting ... which cannot be performed merely by thinking"; (2)
"includes performing a predefined action ( e.g., controlling a component of
the control center, issuing notifications, modifying operational parameters,
etc.), which cannot be performed merely by the human mind"; and (3) "is
similar to McRO because the traffic patterns generated in the claim are
"similar to the data stream generated by McRO." Appeal Br. 19 (citing
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir.
2016)).
We find Appellant's arguments unpersuasive. Claim 1 recites a
"system" that uses a processor [a] to implement steps including: [b]
"generat[ing] simulated, predictive contact center traffic patterns ... that
represents current contact traffic;" [c] "emulat[ing] the corresponding call
center and generates a forecast of contact center behavior by correlating"
data recited in limitations [d], [e], and [f], and [g] "evaluat[ing] the
generated forecast ... in view of the current state of operational data
received from the corresponding contact center and determin[ing] in
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response to the evaluation, whether to execute a predefined action that
communicates back to the contact center." Appeal Br. 28.
Apart from generic hardware, such as recited in limitation [a] ("a
processor coupled to memory") and [b] ("contact center "), limitations [b] -
[g] recite [b] "generat[ing] simulated, predictive contact center traffic
patterns"; [ c] "generat[ing] a forecast of contact center behavior by
correlating:" [d] "a current state of operational data received from the
corresponding contact center"; [ e] "simulated, predictive traffic patterns'"
and [fJ "historical data"; and [g] "evaluat[ing] the generated forecast
received from the contact center emulator in view of the current state of
operational data received from the corresponding contact center and
determin[ing] in response to the evaluation, whether to execute a predefined
action that communicates back to the contact center." These limitations,
under their broadest reasonable interpretation, recite managing a contact
center because the limitations all recite operations that would ordinarily be
performed by a supervisor in managing a contact center. For example, the
supervisor would [b] generate predictive contact center traffic patterns by
knowing, based on experience, that calls are received at a particular rate
during various hours of operation (e.g., a rate of ten calls per hour in the first
hour of business), [ c] generate a forecast of contact center behavior by
correlating: (1) a current state of operation data observed while monitoring
the contact center ([ d]); (2 ) the supervisor's knowledge and experience of
traffic patterns ([ e ]); and (3) historical data ([ fJ). The supervisor would then
[g] evaluate the generated forecast in view of a current state of operational
data and apply appropriate judgment to formulate a response, i.e., mentally
determine whether to execute a predefined action.
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Managing a call center to "allocate resources in an efficient manner"
is an activity long practiced in commerce. Spec. ,r,r 6, 7 ("supervisors may
dynamically modify the operational parameters of a contact center in order
to handle unanticipated traffic variations or in response to events that impact
contact center resources."). In addition, allocating resources based on
forecasted demand, e.g., allocating call center resources by forecasting call
volume, is also an activity long used in commerce. Thus, apart from extra-
solution activity and generic hardware (as discussed in Step 2B below), the
claimed invention is analogous to pre-Internet commercial transactions
between humans in which "supervisors ... dynamically modify the
operational parameters of a contact center in order to handle unanticipated
traffic variations" to thereby "maximize contact center performance and
profitability." Spec. ,r,r 6, 7. For example, Appellant's Specification
describes the problem the claimed invention seeks to address as "assisting
contact center personnel in optimizing contact center efficiency and reducing
contact center operating costs." Spec. ,r 8. Appellant, thus, seeks to
automate supervisor decision making and judgment in connection with the
allocation of call center resources, which is a fundamental economic activity
long prevalent in our system of commerce and is similar to other types of
"organizing human activity" that have been found to be abstract ideas by the
Supreme Court and the Federal Circuit. See, e.g., Alice, 573 U.S. at 220
(intermediated settlement); see also OIP Techs., Inc. v. Amazon.com, Inc.,
788 F.3d 1359, 1362---63 (Fed. Cir. 2015) (offer-based price optimization);
Fair Warning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016) ( collecting and analyzing information and notifying a user based on
the analysis); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir.
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2014) ("creating a contractual relationship----a 'transaction performance
guaranty'"); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir.
2014) ("showing an advertisement before delivering free content."); and
Accenture Global Services, GmbH v. Guidewire Software, Inc., 728 F .3d
1336, 1344--45 (Fed.Cir.2013) (generating tasks for processing an insurance
claim).
We also agree with the Examiner's determination that claim 1 recites
a mental process. See Final Act. 5. Our reviewing courts have determined
certain claims limited to manipulating information to be abstract. See
Content Extraction and Transmission LLC v. Wells Fargo Bank, National
Ass 'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) ("collecting data, ...
recognizing certain data within the collected data set, and ... storing that
recognized data in a memory."); see also Classen Immunotherapies, Inc. v.
Biogen IDEC, 659 F.3d 1057 (Fed. Cir. 2011) (collecting and comparing
known information); Parker v. Flook, 437 U.S. at 98 (method for calculating
alarm limit values during catalytic conversion processes, in which only
novel feature was mathematical formula, did not describe patentable subject
matter). In view of the relevant case law, we agree with the Examiner that
claim 1 's use of a processor for automating mental tasks (see Final Act. 6-
7), is an example of concepts performed in the human mind as mental
processes because the steps mimic human thought processes, perhaps with
paper and pencil. See Bancorp Services, L.L. C. v. Sun Life Assur. Co. of
Canada (U.S.), 687 F.3d 1266, 1279 (Fed. Cir. 2012), cert. denied, 134 S.Ct.
2870 (2014) ("Using a computer to accelerate an ineligible mental process
does not make that process patent-eligible."); see also Memorandum n.14
(citing Intellectual Ventures I LLCv. Symantec Corp., 838 F.3d 1307, 1318
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(Fed. Cir. 2016) ("[W]ith the exception of generic computer-implemented
steps, there is nothing in the claims themselves that foreclose them from
being performed by a human, mentally or with pen and paper.")).
Manipulating and analyzing information by steps people may go through in
their minds, without more, is essentially a mental process within the
abstract-idea category.
Accordingly, we agree with the Examiner that claim 1 recites a mental
process, as provided for in the Memorandum. We further conclude that
claim 1 recites a fundamental economic practice, which is one of certain
methods of organizing human activity identified in the Memorandum, and
thus an abstract idea.
STEP 2A Prong 2
Next, we determine whether the claim is directed to the abstract
concept itself or whether it is instead directed to some technological
implementation or application of, or improvement to, this concept, i.e.,
whether the claim is integrated into a practical application. See, e.g., Alice,
573 U.S. at 223 (discussing Diehr, 450 U.S. at 175).
Applying step 2 of the Alice/Mayo analysis, the Examiner identifies
the additional limitations other than the abstract idea, such as the processor
and the memory, and determines they merely recite "generic computing
elements" and thus do not include "meaningful limitations" beyond the
computer implementation of the abstract idea. Final Act. 7. The Examiner
further determines the claim does not recite "improvements to another
technology or technical field; improvements to the functioning of the
computer itself; applying the judicial exception with, or by use of, a
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particular machine; [or] effecting a transformation or reduction of a
particular article to a different state or thing." Id.
Appellant argues the claimed simulated contact center traffic patterns
are "similar to the data stream generated by McRO" and thus "claim 1 of the
present application includes similar functions that were found not to be
directed to an abstract idea and thus patent-eligible in McRO." Appeal
Br. 19-20 (citing McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d
1299 (Fed. Cir. 2016)).
Appellant's argument based on McRO is unpersuasive because
Appellant's claim 1 is unlike the claims in McRO. The patent at issue in
McRO describes that, prior to the claimed invention, character animation and
lip synchronization were accomplished by human animators, with the
assistance of a computer, and involved the use of a so-called "keyframe"
approach in which animators set appropriate parameters, i.e., morph weights,
at certain important times, i.e., in order to produce accurate and realistic lip
synchronization and facial expressions. McRO, 837 F.3d. at 1305.
Animators knew what phoneme a character pronounced at a given time from
a time-aligned phonetic transcription ( a "timed transcript"). Id. In
accordance with the prior technique, animators, using a computer, thus,
manually determined the appropriate morph weight sets for each keyframe
based on the phoneme timings in the timed transcript. Id.
Thus, in McRO, the improvement in computer animation was realized
by using "rules, rather than artists [i.e., human animators], to set the morph
weights and transitions between phonemes" (id. at 1313 (citation omitted)),
i.e., in McRO, the invention used "rules to automatically set a keyframe at
the correct point to depict more realistic speech, achieving results similar to
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those previously achieved manually by animators." Id. at 1307. The rules in
McRO, thus, allowed the computer to solve a technological problem by
producing accurate and realistic synchronization in animated characters that
could only previously be produced by humans.
In contrast with McRO, Appellant does not identify any specific rules
in the claim that are used by the claimed processor to solve a technological
problem, let alone identify specific rules that act in the same way as the
specific rules enabling the computer in McRO to generate computer
animated characters. Rather, Appellant's claim 1 broadly recites evaluating
forecast data "in view of the current state of operational data" and
"determines in response to the evaluation, whether to execute a predefined
action that communicates back to the contact center." Appeal Br. 33. No
technological rules are identified in performing the claimed evaluating step.
See Id. We, therefore, find insufficient evidence of record to support the
argument that Appellant's claim 1 is similar to the claim in McRO, where
computers were unable to make certain subjective determinations, i.e.,
regarding morph weight and phoneme timings, which could only be made
prior to the McRO invention by human animators.
Also, the solution Appellant seeks to provide via claim 1 is to a
business problem, not a technical problem. Rather than addressing a
problem unique to the technology in which the solution is implemented,
Appellant's claim 1 merely automates, using generic computer technology, a
pre-internet process in which a supervisor "dynamically modif1ies] the
operational parameters of a contact center in order to handle unanticipated
traffic variations" to thereby "maximize contact center performance and
profitability." Spec. ,r,r 6, 7. As set forth in the Specification, the
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"reactionary nature of contact center management [by a supervisor] can
result in valid decisions being made too late or invalid decisions being made
too early ... resulting in increased cost to the contact center operator."
Spec. ,r 7. Thus, claim 1 is directed to enhancing contact center
management, which, as claimed, is not an improvement to technology. See
MPEP § 2106.05 (a).
In addition, because a particular computer is not required, the claim
also does not define or rely on a "particular machine." See MPEP § 2106. 05
(b ). Further, the method does not transform matter; at best it transforms
information. See MPEP § 2106.05 ( c ); see also Gottschalk v. Benson, 409
U.S. 63, 71-72 (1972) (holding that a computer based algorithm that merely
transforms data from one form to another is not patent-eligible). Instead, the
claim simply manipulates and outputs data. As such, the claim has no other
meaningful limitations (see MPEP § 2106.05 ( e )), and merely recites
instructions to execute the abstract idea on a computer processor (see MPEP
§ 2106.05 (f)).
We, therefore, determine claim 1 is not directed to a specific
improvement in computer technological implementation or otherwise
integrated into a practical application and thus is directed to a judicial
exception.
STEP 2B
Next, we determine whether the claim includes additional elements
that provide significantly more than the recited judicial exception, thereby
providing an inventive concept. Alice, 573 U.S. at 217-18 (quoting Mayo,
566 U.S. at 72-73).
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The Examiner finds the additional limitations of claim 1 "are generic
computing elements performing generic computing functions and, as a
result, do not amount to significantly more" than the claimed abstract idea.
Final Act. 7.
Appellant argues "even if claim 1 were to be deemed as directed to an
abstract idea, claim 1 is an improvement in the technological field of contact
centers and is something significantly more than a mental process or a
mathematical function." Appeal Br. 20.
We find Appellant's argument unpersuasive because, other than the
abstract idea, claim 1 recites [a] "a processor coupled to memory" and [b]
receiving data "from a corresponding contact center." Appeal Br. 33,
Claims Appendix. Considered both separately and as an ordered
combination, the additional limitations add nothing inventive to the claim.
As noted above, limitation [a] merely recites generic computing components
for implementing the claimed abstract idea (see Spec. ,r 65) and limitation
[b ], apart from the abstract data generation, merely recites receiving data
from a contact center, which is a mere pre-solution data gathering activity.
See OIP Techs., 788 at 1363 (gathering statistics about how potential
customers responded to the offers; the statistics are then used to calculate an
optimized price).
Appellant argues claim 1 recites significantly more because "there is
some modification to the contact center (e.g., controlling a component of the
control center, issuing notifications, modifying operational parameters of the
contact center, etc.)." Appeal Br. 20. Claim 1 recites [g] "a control unit that
... determines in response to the evaluation, whether to execute a predefined
action that communicates back to the contact center." Appeal Br. 33. We
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disagree with Appellant that "there is some modification to the contact
center" (id. at 20) because determining whether to execute a predefined
action is not the same thing as executing an action. Thus, to the extent
Appellant argues limitation [g] adds significantly more to the abstract idea
(see Appeal Br. 20), this limitation is not an additional element beyond the
abstract idea, but rather is directed to the abstract idea itself as noted by the
Examiner. See Ans. 6-7; see also Memorandum (Instructing that additional
recited element(s) should be evaluated in Alice/Mayo step two to determine
whether they: ( 1) add specific limitation( s) that are not well-understood,
routine, and conventional in the field; or (2) simply append well-understood,
routine, and conventional activities previously known to the industry.)
(citing MPEP § 2106.05(d)). Thus, we do not find that the additional recited
elements- considered individually and as an ordered combination-add
significantly more to the abstract idea to provide an inventive concept under
Alice/Mayo step two. See Alice, 573 U.S. at 221; see also Memorandum.
In conclusion, because Appellant's representative claim 1 is directed
to a patent-ineligible abstract concept and does not recite something
"significantly more" under the Alice analysis, we sustain the rejection of this
claim under 35 U.S.C. § 101 as being directed to non-patentable subject
matter. The rejection of the other claims in the group is sustained for the
same reasons.
Next, Appellant argues dependent "claims 4, 11, and 17 further define
rules for generating the simulated traffic patterns, similar to the rules for
animating a mouth inMcRO." Appeal Br. 21. We are unpersuaded of
Examiner error because Appellant's identified rules in the dependent claims
are not used by the claimed processor to solve a technological problem.
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Rather, the additional recitations of short, medium, and long term forecasts
relate to a business problem; automating, using generic computer
technology, a pre-internet process in which a supervisor "dynamically
modif1ies] the operational parameters of a contact center in order to handle
unanticipated traffic variations" to thereby "maximize contact center
performance and profitability." Spec. ,r,r 6, 7. Nor has Appellant established
the claimed rules act in the same way as the specific rules enabling the
computer in McRO to generate the computer animated characters. We,
therefore, sustain the rejection of claims 4, 11, and 17 under
35 U.S.C. § 101.
Next, Appellant argues "claims 2, 9, and 10 explicitly recite
predefined actions executed based on forecasts concerning the contact
center." Appeal Br. 21. We are unpersuaded of Examiner error because
Appellant fails to persuade us that these additional limitations are sufficient
to integrate the judicial exception into a practical application. See MPEP
§ 2106.05(a}-(c), (e}-(h). We, therefore, sustain the rejection of claims 2, 9,
and 10 under 35 U.S.C. § 101.
Reiection Under 35 U.S. C. § 103
The Examiner finds Kosiba teaches or suggests "a traffic generator
that generates simulated, predictive contact center traffic patterns based
upon data received from a corresponding contact center that represents
current contact traffic that has entered the contact center," as recited in claim
I. See Final Act. 10-16; Ans. 7-10. Specifically, the Examiner relies on
Kosiba's discussion of planning and analysis system 205 receiving
automatic feeds of data from automatic call distributor ("ACD") 110 and
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customer information system ("CIS") 125. See Final Act. 11-12; Ans. 8-9
( citing Kosiba ,r,r 7 4, 86, 87 and Fig. 2).
Appellant disputes the Examiner's factual findings, arguing "the
claimed invention mirrors or tracks current contact traffic activity that is
taking place within the corresponding contact center" but "Kosiba relies
upon historical data to describe workflow relationships between
management and contact center performance." Appeal Br. 27.
We are unpersuaded of Examiner error. Appellant does not dispute
the Examiner's finding that Kosiba' s planning and analysis system 205
teaches generating "simulated, predictive contact center traffic patterns," as
recited in the claimed traffic generator. Kosiba further discloses that
"[s]etting up automatic feeds to process the data captured by the ACD and
CIS (step 700) is necessary to ensure that the planning and analysis system
205 uses the most current and accurate data in its calculations." Kosiba ,r 86
( emphasis added). The Examiner also finds Kosiba teaches "[t]he daily call
interval reports produced by the ACD 110 include quarter hour, half hour, or
hourly summaries of contact center performance." See Ans. 8 ( citing Kosiba
,r 7 4 ). Appellant fails to provide sufficient evidence or persuasive reasoning
to persuade us that Kosiba's quarter hour call-interval reports provided to
Kosiba's planning and analysis system 205 or Kosiba's teaching that
"planning and analysis system 205 uses the most current ... data in its
calculations" are insufficient to teach or suggest receiving data that
represents "current contact traffic," as recited in claim 1. See Kosiba ,r,r 74,
86.
The Examiner finds Kosiba's teaches "a contact center emulator ...
correlating: a current state of operational data received from the
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corresponding contact center so that the emulation mirrors the current
operation of the contact center," as recited in claim 1. See Final Act. 13-14;
Ans. 8-9 (citing Kosiba ,r,r 3, 33, 50, 74, and Fig. 2).
Appellant does not dispute the Examiner's finding that Kosiba's "call
interval reports and call-by-call data" teach operational data received from
the corresponding contact center, but instead argues:
Kosiba do[ es] not teach or suggest "correlating: a current state
of operational data received from the corresponding contact
center so that the emulation mirrors the current operation of
the contact center" as claimed, because the call interval data
can be a day old (thus, not current (i.e., not mirroring the
current operation of the contact center as defined in claim 1) ).
In other words, in Kosiba, "current" means a day old, while
"current" in claim 1 means that the "emulation mirrors the
current operation of the contact center." Thus, Kosiba does not
teach that the current data mirrors the contact center.
Appeal Br. 29.
Appellant's argument that day old data is not current data (id.) is not
persuasive because it does not address the Examiner's reliance on quarter-
hour call-interval reports or the Examiner's finding that Kosiba teaches
using the "most current" data in its calculations. Kosiba ,r 86; see Ans. 8.
Appellant further argues that "even though the summaries may be
created every 15 minutes, those summaries may be aggregated to produce
the daily report and are then reported daily. Therefore, the 'most current'
data is still reported daily." Reply Br. 4. This argument is not supported by
evidence found in the record and is, instead, only attorney argument which
"cannot take the place of evidence." In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974).
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Appellant, thus, fails to provide sufficient evidence or reasoning to
persuade us Kosiba's quarter hour call-interval reports provided to Kosiba's
planning and analysis system 205 or Kosiba's teaching that "planning and
analysis system 205 uses the most current ... data in its calculations" are
insufficient to teach or suggest "a contact center emulator ... correlating: a
current state of operational data received from the corresponding contact
center so that the emulation mirrors the current operation of the contact
center," as recited in claim 1. See Kosiba ,r,r 74, 86.
We, therefore, sustain the Examiner's 35 U.S.C. § 103 rejection of
claim 1, and of independent claims 8 and 14, which are not argued
separately with particularlity 1. See Appeal Br. 30. We likewise sustain the
rejections of dependent claims 2, 4--7, 9-13, and 16-21, which are also not
argued separately. Id. at 30-31.
DECISION
We affirm the Examiner's decision to reject claims 1, 2, 4--14, and
16-21 under 35 U.S.C. § 101.
We affirm the Examiner's decision to reject claims 1, 2, 4--14, and
16-21 under 35 U.S.C. § 103.
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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