Ex Parte Steiner et al

Patent Trial and Appeal Board

Sep 28, 2017

14290652 (P.T.A.B. Sep. 28, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/290,652 05/29/2014 Robert C. Steiner 4366-655 6003
48500 7590
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
SHAH, ANTIM G
ART UNIT PAPER NUMBER
2652
NOTIFICATION DATE DELIVERY MODE
10/02/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT C. STEINER and WEN-HUA JU
Appeal 2017-001737
Application 14/290,652
Technology Center 2600
Before CARL W. WHITEHEAD JR., IRVIN E. BRANCH, and
JOHN R. KENNY, Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
Appellants request rehearing of our Decision on Appeal entered June
27, 2017 (“Decision”), in which we affirmed the Examiner’s rejection of
claims 1—20.
ANALYSIS
We have reviewed the Request for Rehearing (“Req. Reh’g”) in view
of our Decision. Appellants’ arguments do not persuade us of anything our
decision misapprehended or overlooked. We note the following for
emphasis.
Appeal 2017-001737
Application 14/290,652
Appellants argue we misapprehended or overlooked Appellants’
arguments as follows:
the combination of Perlmutter and Fotta results in “the prior art
invention being modified unsatisfactory for its intended
purpose^”] (Appellant’s Appeal Brief, p. 8). Whereas
Perlmutter failed to disclosed the claimed “avoidance
parameter,” by which a call received at a call center may be
directed to a particular agent or resource and not (“avoided”)
provided to another particular agent or resource, being taught by
Fotta [sic]. Appellant traversed.
Fotta discloses preventing of a particular call from being
placed at the source of the call. Appellant argued that Fotta
teaches how a call may, or may not, be placed and, if actually
combined with Perlmutter, results in a call being received or no
call being received. If no call is received, then the teachings of
Perlmutter are inoperable to perform any action. If a call is
received, the teachings of Perlmutter route the call without
devoid of consideration of Fotta.
Appellant’s arguments specifically refuted the relied-upon
teachings of the references and the necessary result when
combined. Appellant made no argument requiring the references
to be “bodily incorporated” but argued that the blocking (Fotta)
would need to be utilized after a call was received so that the call
may be routed to an appropriate agent. Appellant argued that
Fotta discloses blocking of the placing of a call at the source.
Therefore, a teaching of the claims was not possible based on the
combination of the cited references, unless one or both of the
references was modified so as to be unsuited for its intended
purpose.
The Board failed to consider Appellant’s arguments and
merely reiterated the examiner’s (erroneous) position that
Appellant’s argument was inappropriate under In re Keller.
Req. Reh’g 3^4.
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Application 14/290,652
Our Decision relied on the Examiner’s findings and conclusion with
respect to the rejection of claim 1 over Perlmutter and Fotta. Specifically we
stated:
We are unpersuaded of error in the Examiner’s rejection
of claim 1 (Ans. 2—4) for the reasons stated by the Examiner (id.
[at] 9—12). We adopt the Examiner’s findings and conclusion
that claim 1 is obvious over the combination of Perlmutter and
Fotta. We highlight the following for emphasis.
Appellants’ first argument—that the cited art does not
teach or suggest the “identifying” element (App. Br. 8—10; Reply
Br. 1—2)—is unpersuasive because it does not squarely rebut the
Examiner’s finding that Perlmutter discloses all elements of
claim 1, except that Perlmutter does not specifically disclose the
term “avoidance parameter,” for which the Examiner relies on
Fotta. Ans. 9—11. Appellants’ arguments amount to an
unpersuasive attack on the references individually when the
rejection is based on what their combined teachings would have
taught or suggested to one of ordinary skill in the art. See In re
Keller, 642 F.2d 413,426 (CCPA 1981); In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).
As to Appellants’ second argument—that the references
are not properly combinable (App. Br. 10—11; Reply Br. 2)—the
Examiner correctly points out (Ans. 11—12) that the argument is
unpersuasive because it amounts to an argument that the
teachings of one reference may not be “bodily incorporated” into
that of another reference, which is not an argument against
obviousness. Ans. 11—12 (citing Keller).
Decision 3^4. We remain unpersuaded of error for the same reasons.
Claim 1 recites:
1. A method, comprising:
receiving, by a work assignment engine, a work item in a
contact center, the work assignment engine processor-executable
instructions stored in a non-transitory computer readable
medium of the contact center, the work item representing one or
more customer contacts with the contact center;
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Application 14/290,652
identifying, by a processor executing the work assignment
engine, a first resource in the contact center as being a resource
that is prohibited from being assigned to the work item even
though the first resource is available and/or qualified to process
the work item, wherein the first resource is prohibited from being
assigned to the work item based in part on a detected avoidance
parameter identified, and wherein the detected avoidance
parameter is identified during initial call routing; and
in response to identifying the first resource as a resource
that is prohibited from being assigned to the work item,
implementing avoidance logic that prohibits the work
assignment engine from assigning the work item to the first
resource.
The Examiner’s rejection includes a citation to paragraphs 32 and 33
of Perlmutter. See Final Act. 3—5 (citing, inter alia, Perlmutter || 32—33).
Those paragraphs read, in relevant part (with insertions mapping the claim
language to the disclosure):
[0032] Having received the “prefer not to interact with this agent
again” preference of this particular customer, the IVR system 57
stores that information [“parameter”] in Stat Server 79, or in a
database such as a historical interaction, Customer Relationship
Management or a Customer Interaction System database,
associated with identification of both the customer and the agent
[0033] In an embodiment of this invention, routing functionality
executed by CTI server 67 and server 29 [“work assignment
engine”] accesses information in Stat Server 79 for each call
received, and in the event of a subsequent call [“receiving . . .
work item . . . representing . . . customer contact] with the
contact center”] from the same origination number, or somehow
identified as the same caller [“identifying, by a processor
executing the work assignment engine, a first resource in the
contact center as being a resource that is prohibited from being
assigned to the work item even though the first resource is
available and/or qualified to process the work item, wherein the
first resource is prohibited from being assigned to the work item
based in part on a detected avoidance parameter identified, and
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Application 14/290,652
wherein the detected avoidance parameter is identified during
initial call routing”], the routing system accesses whether the
same agent is current and available, and, if possible, routes the
call r“in response to identifying the first resource as a resource
that is prohibited from being assigned to the work item,
implementing avoidance logic that prohibits the work
assignment engine from assigning the work item to the first
resource”!, or queues the new call to be routed, to an agent other
than the agent the customer would prefer to avoid.
Perlmutter || 32—33.
The Examiner finds “Perlmutter does not expressly disclose the term
avoidance parameter.” Final Act. 5. See also Ans. 10 (“Perlmutter teaches
the overall concept/feature claimed by independent claims 1, 9 and 17
except the term ‘avoidance parameter’”). The Examiner finds Fotta
discloses “avoidance parameter.” Final Act. 5 (“Fotta discloses the feature
of having avoidance parameter identified, and wherein the detected
avoidance parameter is identified during initial call routing” (citing Fotta
9-11, 14, 17, and 110)). See also Ans. 10 (“Fotta uses prohibited
destination identifier (same as term ‘avoidance parameter’) to avoid call
placed to a prohibited destination”). The Examiner reasons as follows:
It would have been obvious before the effective filing date
of the claimed invention to a person having ordinary skill in the
art to modify Perlmutter to have the feature of wherein the first
resource is prohibited from being assigned to the work item
based in part on a detected avoidance parameter [being]
identified, and wherein the detected avoidance parameter is
identified during initial call routing as taught by Fotta. The
suggestion/motivation would have been to allow or prohibit the
communication connection based on one or more mediation rules
and lists of prohibited and exempted destination identifiers in
database. . . .
Final Act. 5 (citing Fotta 1112).
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We see no error in the Examiner’s findings and conclusions that claim
1 is obvious over Perlmutter and Fotta. Final Act. 3—5.
In the Appeal Brief, Appellants argued “upon review of Fotta, at the
cited locations and elsewhere, Applicant finds Fotta’s teachings differ from
what is claimed,” followed by citations to and analysis of portions of Fotta,
including portions of Fotta not cited by the Examiner. App. Br. 9—10 (citing
Fotta 36 and 38). Appellants argued “[a]s Fotta is directed towards
prohibited destinations, Fotta fails to teach or reasonably suggest the
‘avoidance parameter’ as required by Appellant’s claims.” Id. at 10.
Appellants then argued as follows:
Fotta teaches the allowance or prohibition of a communication
between a source and a particular destination. Combining
Perlmutter with Fotta results in connections being permitted or
denied, under Fotta, and then routed based upon Perlmutter’s
customer rules.
If Fotta denied a connection, the teachings of Perlmutter
are of no concern as Perlmutter has no connection to route,
rendering Perlmutter inoperable. If Perlmutter received a call,
then Fotta’s teachings to disallow certain connections did not
apply and Fotta was inoperable. Accordingly, the combination
of Perlmutter and Fotta would render one “unsatisfactory for its
intended purpose” and, therefore, the combination lacks
motivation.
Id. at 10—11.
The Examiner responded to Appellants’ first argument by reiterating
the limited purpose for which the Examiner relied on the teachings of Fotta.
Ans. 10 (“Fotta uses prohibited destination identifier (same as term
‘avoidance parameter’) to avoid call placed to a prohibited destination”).
Notably, the Examiner recognized that Fotta operates on outgoing calls (i.e.,
“calls placed to a prohibited destination”). Id. The Examiner explained that
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Application 14/290,652
a specific parameter, such as Fotta’s “prohibited destination identifier” (see
e.g., Fotta 19) can be used during call routing. Id. at 10-11. The Examiner
explained that this teaching from Fotta in combination with the teaching of
Perlmutter would have put one of ordinary skill in the art in possession of
the “avoidance parameter.” Id.
In response to Appellants’ second argument, the Examiner explained
that the rejection was based on the combined teachings of the references and
not a structural combination of Fotta into Perlmutter. Ans. 11—12 (citing
Keller).
In reply, Appellants presented arguments similar to those Appellants
advanced in the Appeal Brief regarding the combination. Specifically,
Appellants argued as follows:
The teachings of Fotta determine if a call can be, or cannot
be, placed to a destination. (Fotta, 10009). If Fotta determines a
call cannot be placed, then there is no call and Perlmutter is
rendered inoperable for its intended purpose to route a call to an
agent other than the agent to be avoided. If Fotta determines a
call can be placed, then Fotta merely describes the placing of a
call in a manner devoid of Fotta and Fotta is rendered inoperable
for its intended purpose of blocking the placing of prohibited
calls. Combining the teachings of Fotta, wherein an indicator is
provided that, if set prohibits a call to be placed, with an agent
avoidance routing of a received call fails to disclose that which
is claimed, namely, and by non-limiting paraphrasing, the
receiving of (a placed call) and the routing of the call to avoid a
resource type. Accordingly, should such a combination of Fotta
and Perlmutter be made, such a combination still fails to teach or
reasonably suggest that which Appellant has claimed.
Reply Br. 2.
We find Appellants’ argument is conclusory and is based upon
bodily incorporation (i.e., a “physical insertion” (Keller, 642 F.2d at 426)).
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The Examiner’s rejection does not rely on Fotta for disclosing
“determining] a call cannot be placed,” which is the basis for Appellants’
argument that Perlmutter would be rendered inoperable for its intended
purpose. Reply Br. 2. Rather, the Examiner cites Perlmutter for everything
in claim 1 except “the term avoidance parameter.” Final Act. 5 (emphasis
omitted). See also Ans. 10 (“Perlmutter teaches the overall concept/feature
claimed by independent claims 1, 9 and 17 except the term ‘avoidance
parameter’”) (emphasis omitted). Hence, to whatever extent Appellants
argue error based on the inoperability of a combination the Examiner did not
propose, we are unpersuaded of error. “To justify combining reference
teachings in support of a rejection it is not necessary that a device shown in
one reference can be physically inserted into the device shown in the other.”
Keller, 642 F.2d at 425 (“The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference .... Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art”)
(emphasis added).
DECISION
Accordingly, based on the record before us now and in the original
appeal, we have granted Appellants’ request to the extent that we have
reconsidered our Decision, but we deny Appellants’ request to make any
changes in our Decision.
The request for rehearing is denied.
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).
DENIED
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