Mattersight Corporation

Patent Trials and Appeals Board

Mar 24, 2021

2020002894 (P.T.A.B. Mar. 24, 2021)

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.
13/963,646 08/09/2013 Christopher DANSON 49310.30_81625 3700
27683 7590 03/24/2021
HAYNES AND BOONE, LLP
IP Section
2323 Victory Avenue
Suite 700
Dallas, TX 75219
EXAMINER
GRIFFIN, TAMARA JEAN
ART UNIT PAPER NUMBER
3629
NOTIFICATION DATE DELIVERY MODE
03/24/2021 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):
ipdocketing@haynesboone.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHRISTOPHER DANSON,
BRITTNEY LYNN MCINGVALE, ALAIN STEPHAN,
TOMASZ STADNIK, SAMANTHA SHRUTI DESIKAN,
and ROGER WARFORD

Appeal 2020-002894
Application 13/963,646
Technology Center 3600
____________

Before BIBHU R. MOHANTY, CYNTHIA L. MURPHY, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

MURPHY, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals from the Examiner’s rejections of
claims 25–53 and 55–57 under 35 U.S.C. § 101 (Rejection I) and 35 U.S.C.
§ 103 (Rejections II and III). We sustain all three of these rejections, and,
therefore, we AFFIRM.2

1 The Appellant is the “applicant” as defined by 37 C.F.R. § 1.42 (e.g., “the
inventor or all of the joint inventors”). “The real party in interest is assignee
of record Mattersight Corporation.” (Appeal Br. 3, bolding omitted.)
2 We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a). A hearing was
held on March 11, 2021.
Appeal 2020-002894
Application 13/963,646

2
THE APPELLANT’S INVENTION
The Appellant’s invention relates to “evaluating job candidates, and,
more particularly to applying linguistic analysis to the text of answers given
by the job candidate during an interview.” (Spec. ¶ 1.)
The problem addressed by the Appellant stems from the subjective
influence a human interviewer intrinsically introduces to the interview
process. (See Spec. ¶ 3.) In a typical interview process, interviews are
carried out between an interviewer and “job candidates,” and then the
interviewer is “asked for feedback on the job candidates.” (Id.) There is a
possibility, therefore, that the feedback provided by the interviewer
“revolves around the interviewer’s personal comfort or personal style, not
the attributes and skills that are most pertinent to the job.” (Id.)
The Appellant solves this problem by using a “linguistic” approach
that provides “superior evaluation of strengths and preferences of the
candidates for a particular position.” (Spec. ¶ 39.) With this approach, the
“keywords” used by a job candidate, and the density (i.e., frequency)
thereof, are relied upon when evaluating his/her “strengths, weaknesses, and
personality for a particular job position.” (Id. ¶ 15.)
To this end, “[b]efore the interview takes place, keywords associated
with one or more categories relevant or related to a job position are
identified.” (Spec. ¶ 5.) “During the interview, the candidate is asked a
series of questions,” the candidate’s answers are “received” and “recorded,”
and the received/recorded answers “are analyzed to determine how many
times the identified keywords appear in the answers.” (Id.) The keywords,
and the density thereof, are used to categorize the job candidate’s
“personality type” (id. ¶ 43) and to predict his/her “fit for a particular job
Appeal 2020-002894
Application 13/963,646

3
position” (id. ¶ 18). A job candidate’s answers, personality type, and job-fit
prediction are organized into a “candidate profile” (id. ¶ 40) which is
compared to “predefined criteria” to assess whether the candidate is
“acceptable for the position” (id. ¶ 41).
According to the Appellant, this linguistic approach to interviewing
job candidates “eliminate[es] the human subjectivity component.” (Spec.
¶ 39.)
ILLUSTRATIVE CLAIM
25. A system for evaluating a plurality of job candidates,
comprising:
a node comprising a processor and a computer readable
medium operably coupled thereto, the computer readable
medium comprising a plurality of instructions stored in
association therewith that are accessible to, and executable by,
the processor, where the plurality of instructions comprises:
instructions that, when executed, present, via a display
module, a plurality of interview situations to the job candidates;
instructions that, when executed, receive responses to the
interview situations from a device associated with each of the
job candidates;
instructions that, when executed, record, via an audio or
video device, the responses to the interview situations;
instructions that, when executed, identify (i) keywords
relevant to a personality type of a job candidate and (ii)
keywords that predict success or fit for a particular job position;
instructions that, when executed, determine a density of
the identified keywords and usage of the identified keywords in
context of the interview situations in a lingual response portion
of each of the job candidates' responses to the interview
situations;
instructions that, when executed, output (i) a personality
type for each of the job candidates and (ii) a prediction of
success or fit for a particular job position based on the
Appeal 2020-002894
Application 13/963,646

4
determined density of the identified keywords and usage of the
identified keywords in context;
instructions that, when executed, organize each of the job
candidates’ responses to the interview situations, outputted
personality types, and outputted predictions of success or fit for
a particular job position into a candidate profile for each of the
job candidates;
instructions that, when executed, compare the candidate
profile of each of the job candidates to a predefined criterion;
and
instructions that, when executed, identify which job
candidates’ candidate profiles satisfy the predefined criterion.
REJECTION I
The Examiner rejects claims 25–53 and 55–57 under 35 U.S.C. § 101
as being directed to an abstract idea without significantly more. (Non-Final
Action 5.) To wit, the Examiner concludes that the claims on appeal do not
satisfy the Alice framework for patent eligibility.
The Alice Framework
In Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014), the Supreme
Court imparted a two-step framework to detect when an attempt is being
made to patent an abstract idea in isolation. (Id. at 217–18.) In the first step
of the Alice framework, a determination is made as to whether the claim at
issue is “directed to” an abstract idea. (Id. at 218.) In the second step of the
Alice framework, a determination is made as to whether “additional
elements” in the claim, both individually and as an ordered combination,
contribute “significantly more” than the abstract idea. (Id.)
The 2019 § 101 Guidance
The 2019 Revised Patent Subject Matter Eligibility Guidance (“2019
§ 101 Guidance”) provides specific steps for discerning whether a claim
Appeal 2020-002894
Application 13/963,646

5
satisfies the Alice framework for patent eligibility. (See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019).)3 These
steps are “[i]n accordance with judicial precedent” and consist of a
two-pronged Step 2A and a Step 2B. (Id. at 52.)
In the first prong of Step 2A (Prong One), a determination is made as
to whether the claim “recites” an abstract idea. (2019 § 101 Guidance,
84 Fed. Reg. at 54.) The Guidance “extracts and synthesizes key concepts
identified by the courts as abstract ideas,” and these concepts include
“[c]ertain methods of organizing human activity,” and, more particularly
“fundamental economic” practices, “commercial” interactions, and
managing “interactions between people.” (Id. at 52.) For example,
optimizing “sales representatives in a business” is a method of organizing
human activity that has economic and commercial repercussions. (In re
Maucorps, 609 F.2d 481, 482 (CCPA 1979); see also In re Comiskey, 554
F.3d 967, 980 (Fed. Cir. 2009), CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366, 1372 n.2 (Fed. Cir. 2011).)
In the second prong of Step 2A (Prong Two), a determination is made
as to whether the claim contains additional elements that “integrate” the
abstract idea “into a practical application.” (See 2019 § 101 Guidance,
84 Fed. Reg. at 53.) “Additional elements” are “claim features, limitations,
and/or steps that are recited in the claim beyond the identified judicial
exception.” (Id. at 55, n. 24.) “A claim that integrates a judicial exception
into a practical application will apply, rely on, or use the judicial exception

3 The Manual of Patent Examining Procedure (“MPEP”) now incorporates
this revised guidance and subsequent updates at Section 2106 (9th ed.
Rev. 10.2019, rev. June 2020).
Appeal 2020-002894
Application 13/963,646

6
in a manner that imposes a meaningful limit on the judicial exception.” (Id.
at 53.) When the additional elements are computer components, and the
claim “merely includes instructions to implement an abstract idea on a
computer, or merely uses a computer as a tool to perform an abstract idea,”
this is not enough to integrate an abstract idea into a practical application.
(Id. at 55.)
If a claim recites an abstract idea under Prong One of Step 2A, and
fails to integrate the abstract idea into a practical application under Prong
Two of Step 2A, the claim is “directed to” an abstract idea under the first
step of the Alice framework. (2019 § 101 Guidance, 84 Fed. Reg. at 51.)
In Step 2B, a determination is made as to whether the additional
elements recited in the claim, individually or in combination, amount to
“significantly more” than the abstract idea itself. (2019 § 101 Guidance,
Federal Register Vol. 84, No. 4, at 56.) If the additional elements consist of
a conventional arrangement of well-understood, routine, conventional
computer components, they will not amount to significantly more under the
second step of the Alice framework. (See id.)
If a claim is “directed to” an abstract idea under Step 2A, and its
additional elements do not amount to “significantly more” under Step 2B,
the claim does not comply with the Alice framework for patent eligibility.
(2019 § 101 Guidance, Federal Register Vol. 84, No. 4, 56.)
Analysis
As for Prong One of Step 2A, we agree with the Examiner that
independent claim 25 recites an abstract idea, namely a “method of
organizing human activity” that occurs when “evaluating job candidates.”
(Non-Final Action 7.)
Appeal 2020-002894
Application 13/963,646

7
Independent claim 25 recites presenting “a plurality of interview
situations” to the job candidates, receiving “responses to the interview
situations” from the job candidates, and recording “the responses to the
interview situations.” (Appeal Br., Claims App.) Per the Specification,
interviews are “carri[ed] out” between a human interviewer and job
candidates. (Spec. ¶ 3.) During these interviews, the job candidates would
be presented with interview situations, the job candidates would respond to
these interview situations, and the interviewer would record these responses.
Independent claim 25 recites identifying “keywords relevant to a
personality type of a job candidate” and “keywords that predict success or fit
for a particular job position.” (Appeal Br., Claims App.) Per the
Specification, “terms, keywords and phrases” indicate “engagement,
motivation, distress, and specific personality type.” (Spec. ¶ 43.) A human
interviewer would be aware, or could be made aware, of these keywords
when carrying out interviews with the job candidates. And the interviewer
could determine the “density of the identified keywords and usage of the
identified keywords in context of the interview situations in a lingual
response portion of each of the job candidates’ responses to the interview
situations.” (Appeal Br., Claims App.)
Independent claim 25 recites outputting “a personality type for each of
the job candidates” and “a prediction of success or fit for a particular job
position” which is “based on the determined density of the identified
keywords and usage of the identified keywords in context.” (Appeal Br.,
Claims App.) A human interviewer could correlate keywords used by a job
candidate, and the density thereof, to a personality type and a fit-success
Appeal 2020-002894
Application 13/963,646

8
prediction. (See Spec. ¶¶ 37, 43.)4 And this correlation can be considered
the “output” of the interviewer’s mind.
Independent claim 25 recites organizing “each of the job candidates’
responses to the interview situations, outputted personality types, and
outputted predictions of success or fit for a particular job position into a
candidate profile,” comparing “the candidate profile of each of the job
candidates to a predefined criterion,” and identifying “which job candidates’
candidate profiles satisfy the predefined criterion.” (Appeal Br., Claims
App.) After a human interviewer carries out interviews with job candidates,
he/she will organize this information in a profile-like manner, compare this
profile to predefined criterion, and identify which profiles satisfy the
predefined criterion.
Independent claim 25, therefore, recites functions performed by a
human interviewer when he/she is interviewing job candidates for a
particular job position. Thus, under Prong One of Step 2A, claim 25 recites
an abstract idea, namely a “method[] of organizing human activity” that
occurs when “evaluating job candidates.” (Non-Final Action 7 (emphasis
omitted).)
As for Prong Two of Step 2A, we agree with the Examiner that the
additional elements in independent claim 25 “do not integrate the abstract
idea into a practical application.” (Non-Final Action 8.)
Independent claim 25 recites a “node,” a “processor,” a “computer
readable medium,” “instructions,” a “display module,” and an “audio or

4 For example, the human interviewer could correlate a high-density usage
of “emotional words” to a “reactions-type” personality and could correlate a
high-density of “swear or curse words” to an unfavorable fit-success
prediction. (Spec. ¶ 43.)
Appeal 2020-002894
Application 13/963,646

9
video device.” (Appeal Br., Claims App.) These computer components are
arguably beyond the abstract idea of interviewing job candidates, and,
therefore, are treated as additional elements during the Prong-Two analysis.
Independent claim 25 requires the node to “compris[e]” the processor
and the computer readable medium, and the instructions to be “stored in
association” with the computer readable medium. (Appeal Br., Claims
App.) Claim 25 also requires the instructions to be “accessible to” and
“executable by” the processor, so that, “when executed,” they perform the
data presenting, receiving, recording, identifying, determining, outputting,
and comparing functions discussed above. (Id.) Claim 25 further requires
the interview situations to be presented “via” the display module, and the job
candidates’ responses to be recorded “via” the audio/video device. (Id.)
Consequently, independent claim 25 “utilizes generic computing
components to automate the abstract idea previously performed by human
resources specialists or recruiters.” (Non-Final Action 8.) Thus, “[a]t best,”
independent claim 25 requires the “automation” of the abstract idea of
interviewing job candidates “through the use of generic-computer
functions.” (OIP Technologies, Inc. v. Amazon.com, Inc. 788 F.3d 1359,
1363 (Fed. Cir. 2015).) “[R]elying on a computer” for this automation “is
insufficient to render a claim patent eligible.” (Id.)
Thus, we agree with the Examiner that independent claim 25 recites
an abstract idea and that its additional elements do not integrate the abstract
idea into a practical application. We agree, therefore, that claim 25 is
“directed to” an abstract idea under the first step of the Alice framework.
Appeal 2020-002894
Application 13/963,646

10
As for Step 2B, we agree with the Examiner that the additional
elements in independent claim 25 do not amount to “significantly more”
than the abstract idea to which it is directed. (Non-Final Action 9.)
The Specification conveys that the computer components required by
independent claim 25 (i.e., the node, the processor, the medium, the
instructions, the display module, and the audio/video device) are
conventional computer components. (See e.g., Spec. ¶¶ 5, 7, 9, 10, 16, 18,
22, 25, 28–31, 34, 51–58.) As for the ordered combination of these
computer components, as discussed above, claim 25 really only requires the
node to comprise the processor and the medium, the medium to store the
instructions, and the processor to execute the instructions. (See Appeal Br.,
Claims App.) In any event, the communication network and/or the
communication link for transferring data between the interviewer’s
computer device and a job candidate’s computer device are described and
depicted in a conventional manner. (See Spec. ¶¶ 18–19, 54, Figs. 1, 3.)
Thus, we agree with the Examiner that the additional elements in
independent claim 25 do not amount to significantly more than the abstract
idea under the second step of the Alice framework. We agree, therefore, that
claim 25 does not satisfy the Alice framework for patent eligibility.
The Appellant’s Arguments
The Appellant argues that “it is not typically the job of a recruiter to
evaluate personality type (as distinct from a candidate’s ‘personality’ or
‘personality fit,’)” and, therefore, “a recruiter could not achieve the claimed
invention merely by following a particular set of rules to interview and
evaluate a candidate.” (Appeal Br. 12.) The Appellant appears to be saying
that human interviewers traditionally have not called upon “psychological
Appeal 2020-002894
Application 13/963,646

11
behavioral models” (Spec. ¶ 37) to evaluate a job candidates’ personality
types, and, ergo, they would not have relied upon keywords corresponding
to such models when interviewing job candidates. Yet the Appellant does
not explain, and we do not see, why a human interviewer could not be armed
with a set of keyword-related rules to perform this personality-type
evaluation.5
The Appellant argues that “[t]he term ‘certain,’” in the phrase “certain
methods of organizing human activity,” serves as a reminder that “not all
methods of organizing human activity are abstract ideas.” (Appeal Br. 13.)
For the purposes of this appeal, we need not dwell on which methods of
organizing human activity, if any, do not qualify as abstract ideas. Here,
controlling case law establishes that the claimed method of organizing
human activity resides comfortably under the abstract-idea umbrella. (See
e.g., Maucorps, 609 F.2d at 482, Comiskey, 554 F.3d at 980, CyberSource
654 F.3d at 1372.)
The Appellant argues that that independent claim 25 “do[es] not cover
abstract methods of organizing human activity” because it “recite[s]
physical, real-world steps such as presenting, via a display module, a
plurality of interview situations to the job candidates, and recording, via an
audio or video device, the responses to the interview situations.” (Appeal
Br. 13.) “However, not every claim that recites concrete, tangible
components escapes the reach of the abstract-idea inquiry.” (In re TLI

5 Inasmuch as the Appellant is asserting that surmising a job candidate’s
personality type with the help of keyword-related rules is an innovative
advance in the interviewing process, this asserted advance “lies entirely in
the realm of abstract ideas,” and “is ineligible for patenting.” (SAP America,
Inc. v. InvestPic. LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018).)
Appeal 2020-002894
Application 13/963,646

12
Communications LLC Patent Litigation, 823 F.3d 608, 611 (Fed. Cir.
2016).)
The Appellant argues that, during the Prong-Two analysis, “proper
weight” should be given “to all additional recited elements, whether or not
they are conventional.” (Appeal Br. 14.) Insofar as the Appellant is
contending that the conventional computer components recited in
independent claim 25 must be treated as additional elements beyond the
abstract idea, the Examiner does so. “The physical hardware devices are not
included in the identified abstract idea (Step 2A Prong 1)” and they “are
instead analyzed in Step 2A Prong 2 to determine if the additional
limitations transform the abstract idea into a practical application.”
(Answer 9.)
The Appellant argues that “[t]he combination of additional elements
in the claims use the alleged abstract idea in a specific manner that
sufficiently limits the use of the alleged abstract idea to the practical
application of identifying job candidates that satisfy predefined criterion.”
(Appeal Br. 14.) According to the Appellant, “the combined additional
elements recite a specific manner of using the personality type of the job
candidate and prediction of success or fit for a particular job position to
create a candidate profile that is then used to elegantly and efficiently
identify which job candidates should be interviewed.” (Id.) However, the
listed elements in claim 25 which contribute to this allegedly elegant/
efficient improvement are embedded in the abstract idea itself. And even a
“brilliant” abstract idea “is not enough for eligibility.” (SAP, 898 F.3d
at 1163.)
Appeal 2020-002894
Application 13/963,646

13
The Appellant argues that the “ordered combination” of the claim
elements “collectively transform the nature of the claims into a patent-
eligible application.” (Appeal Br. 15.) In this regard, the Appellant stresses
that independent claim 25 recites interactions between four devices (a
processor, a display module, the job candidate’s device, and an audio/video
device). (See id.) Yet the Appellant continues this train of thought by
describing such supposedly transformative interactions as conventional data
displaying, data recording, and data processing functions.6
The Appellant argues that independent claim 25 is “tied to interactions
between the devices, cannot be performed without interaction between the
devices, and have no utility outside of the interaction between the devices.”
(Appeal Br. 15 (emphasis omitted).) Thus, according to the Appellant, the
claim language “require[s] communication between the devices and cannot
be performed without this communication.” (Id. (emphasis omitted).) To
the extent that the Appellant is asserting that the limitations of claim 25
cannot be met without these computer devices, we do not necessarily
disagree. However, the “relevant question” is not whether a claim requires
computer components, but rather “whether the claim[]” does “more than

6 Per the Appellant’s description in the Appeal Brief, “the display module
presents the interview situations to the job candidates, the processor receives
responses to the interview situations from a device associated with each of
the job candidates, the audio or video device records the responses to the
interview situations, the processor determines a personality type of each job
candidate and prediction of success or fit for a particular job position, and
the processor uses the personality type and prediction to determine if a job
candidate satisfies predefined criterion.” (Appeal Br. 15.) Thus, the display
module displays interview-related information, the audio/video recording
device records interview-related information, and the processor processes
interview-related information.
Appeal 2020-002894
Application 13/963,646

14
simply instruct the practitioner to implement the abstract idea” on “a generic
computer.” (Alice 573 U.S. at 225.) Claim 25 does not.
The Appellant argues that “the claims recite using the method for a
particular purpose, and are not attempting to claim every possible use of the
alleged abstract idea.” (Appeal Br. 14.) Inasmuch as the Appellant is
arguing that independent claim 25 does not preempt all interviewing
techniques, this is not dispositive of the § 101 rejection at hand. Although
“preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility.” (Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).)
“[Q]uestions on preemption are inherent in and resolved by the § 101
analysis.” (Id.)
Thus, after careful consideration of the Appellant’s arguments, we
still agree with the Examiner that independent claim 25 does not satisfy the
Alice framework for patent eligibility.
Summary
We sustain the Examiner’s rejection of independent claim 25 under
35 U.S.C. § 101. The Appellant argues the independent claims as a group
(see Appeal Br. 10–15)7 and the Appellant does not argue the dependent
claims separately (see id. at 16). Thus, we likewise sustain the Examiner’s
rejection of independent claims 36, 47, and 56, as well as dependent
claims 26–35, 37–46, 48–53, 55, and 57.

7 “When multiple claims subject to the same ground of rejection are argued
as a group or subgroup by appellant, the Board may select a single claim
from the group or subgroup and may decide the appeal as to the ground of
rejection with respect to the group or subgroup on the basis of the selected
claim alone.” (37 CFR § 41.37(c) (1)(iv).)
Appeal 2020-002894
Application 13/963,646

15
REJECTION II
The Examiner rejects claims 25–31, 33–41, 43–52, and 55–57 under
35 U.S.C. § 103 as being unpatentable over Stewart,8 Bonmassar,9 and
Foss.10 (Non-Final Action 12–13.)
Obviousness
“Rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” (KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).)
However, an obviousness evaluator “need not seek out precise teachings
directed to the specific subject matter of the challenged claim” as “the
inferences and creative steps that a person of ordinary skill in the art would
employ” can be taken into account. (Id.) For example, “[t]he combination
of familiar elements according to known methods is likely to be obvious
when it does no more than yield predictable results.” (Id. at 416.)
Analysis
We agree with the Examiner that the prior art collectively teaches
each element of the system set forth in independent claim 25. (See
Non-Final Action 13–27.)
Stewart teaches a “computer implemented system” that uses the
“linguistic profile[s]” in “job hiring environments.” (Stewart Abstract.)
Stewart’s system presents job candidates with interview situations (see id.

8 US 2011/0055098 A1, published March 3, 2011.
9 US 2013/0290207 A1, published October 31, 2013.
10 US 8,266,068 B1, issued September 11, 2012.
Appeal 2020-002894
Application 13/963,646

16
¶ 72), receives/records responses from the job candidates (see id. ¶ 73),
identifies keywords relevant to personality types and job-fit predictions (id.
¶ 49), outputs a personality type and job-fit prediction based on such
keywords (see id. ¶ 74), organizes information into candidate profile for
each of the job candidates (see id. ¶ 72), and compares the profiles to
predefined criteria so as to identify which profiles satisfy this criteria (see id.
¶ 75). Bonmassar teaches looking at “the frequency with which certain
words are used” as an indication of “personality” (Bonmassar ¶ 156) and
determining the “frequency of detected keywords” (id. ¶ 157). And Foss
teaches a “virtual interview assistant” for “interviewing” a job candidate,
“recording” interview responses, generating a “candidate profile,” and
presenting the candidate profile based on “screening criteria.” (Foss
c1:60–c2:15.)
We agree with the Examiner that one of ordinary skill in the art could
have combined the prior art elements as claimed by known methods so that
each element merely performs the same function as it does separately. (See
Non-Final Action 24–25, 27.) Bonmassar’s keyword-density determination
performs the same personality indications, and Foss’s virtual interview
assistant performs the same interviewing functions, when combined with
Stewart’s interviewing system.
We agree with the Examiner that one of ordinary skill in the art would
have recognized that the results of the Stewart/Bonmassar/Foss combination
were predictable. “Stewart teaches the desire to linguistically analyze a
candidate’s interview answer in order to determine a candidate's personality
type and how this personality type would fit with a particular job opening.”
(Answer 19.) “Bonmassar particularly provides an improvement to the
Appeal 2020-002894
Application 13/963,646

17
linguistic analysis of Stewart.” (Id.) And Foss provides “electronic
interview solutions with candidates located anywhere in the world.”
(Non-Final Action 25.)
Thus, we agree with the Examiner that the system set forth in
independent claim 25 would have been obvious over the combined teachings
of Stewart, Bonmassar and Foss.
The Appellant’s Arguments
The Appellant advances arguments premised upon Bonmassar teaching
“word density/analysis only in relation to online content authored by an
individual,” not “the frequency with which certain words are used in direct
recruitment activity.” (Reply Br. 4, see also Appeal Br. 18.) However, these
arguments do not align with the Examiner’s rejection which relies upon
Stewart to teach “identifying keywords” during direct recruitment activity.
(Answer 15.) The Examiner relies on Bonmassar to teach “only” modifying
“Stewart’s keyword analysis of candidate responses” by further taking into
consideration keyword densities. (Id. at 16.)11
The Appellant argues that there is “no deficiency” in Stewart’s
interviewing system which would have led one of ordinary skill in the art “to
modify Stewart by using a density of previously identified keywords as
presently recited.” (Appeal Br. 19.) Thus, according to the Appellant, “one

11 The Appellant contends that Bonmassar would have motivated one of
ordinary skill in the art add its “analysis of online content to Stewart’s
analysis of candidate responses to supplement Stewart's analysis.” (Reply
Br. 4.) While this may be true, it does negate a supported finding that one of
ordinary skill in the art would have been additionally or alternatively
motivated to use Bonmassar’s keyword-density determination when
analyzing candidates’ responses to interview questions.
Appeal 2020-002894
Application 13/963,646

18
of ordinary skill in the art would not have been motivated to modify Stewart,
nor to look to Bonmassar for how to modify the linguistic analysis of job
candidates taught by Stewart.” (Id.) However, such a deficiency need not
be shown to establish that a combination of familiar elements according to
known methods is obvious. (See KSR, 550 U.S. at 416.)
The Appellant argues that the Examiner “fails to explain any adequate
motivation for one of ordinary skill in the art to have combined Stewart and
Bonmassar.” (Appeal Br. 19.) We note that the obviousness analysis is not
“confined by a formalist conception of the words teachings, suggestion, and
motivation” or by “overemphasis” of the “explicit content” of prior art
references. (KSR, 550 U.S. at 419.) Moreover, the Examiner explains that
“[i]t would have been obvious to one of ordinary skill in the art to look for
methods of analyzing job candidates that would build upon the linguistic
analysis of Stewart” and “Bonmassar would improve upon the keyword/
personality type analysis of Stewart by mapping keyword frequency/density
to psychological, emotional and personality characteristics of the candidate.”
(Answer 19, see also Non-Final Action 27.)
The Appellant argues that “those of ordinary skill in the art would not
have reasonably expected to successfully achieve the claimed invention by
picking and choosing a specific feature from Bonmassar” to combine with
Stewart. (Appeal Br. 20.) However, “[l]inguistic technology has already
been used to predict human behavior in the fields of marriage counseling,
medical malpractice, and homeland security” (Stewart ¶ 41), linguistic tools
to analyze keyword frequency/density are commercially available (see
Bonmassar ¶ 157), and an interviewing system can be “implemented on
virtually any type of computer regardless of the platform being used” (Foss
Appeal 2020-002894
Application 13/963,646

19
c7:19–21). As such, worries about predictability would not give one of
ordinary skill in the art pause when considering the combination of familiar
elements from Stewart, Bonmassar, and Foss.
As correctly pointed out by the Appellant (see Appeal Br. 20), a
claim “composed of several elements is not proved obvious merely by
demonstrating that each of its elements was, independently, known in the
prior art.” (KSR, 550 U.S. at 418.) Here, however, the record also
establishes that these elements are familiar elements that can be combined
in a known manner, that each familiar element performs the same function
in the combination as it does separately, and that the results of this
combination of familiar elements would have been predictable.
Thus, after careful consideration of the Appellant’s arguments, we
still agree with the Examiner that the system set forth in independent
claim 25 would have been obvious over the combined teachings of Stewart,
Bonmassar, and Foss.
Summary
We sustain the Examiner’s rejection of independent claim 25 under
35 U.S.C. § 103. The Appellant argues the independent claims as a group
(see Appeal Br. 16–20)12 and the Appellant does not argue dependent claims
separately (see id. at 20). Thus, we likewise sustain the Examiner’s rejection
of independent claims 36, 47, and 56, as well as dependent claims 26–31,
33–35, 37–41, 43–46, 48–52, 55, and 57.

12 “When multiple claims subject to the same ground of rejection are argued
as a group or subgroup by appellant, the Board may select a single claim
from the group or subgroup and may decide the appeal as to the ground of
rejection with respect to the group or subgroup on the basis of the selected
claim alone.” (37 CFR § 41.37(c) (1)(iv).)
Appeal 2020-002894
Application 13/963,646

20
REJECTION III
The Examiner rejects dependent claims 32, 42, and 53 under
35 U.S.C. § 103 as being unpatentable over Stewart, Bonmassar, Foss, and
Bradley.13 (Non-Final Action 36.) The Appellant argues only that Bradley
does not remedy the alleged shortcomings of the Stewart/Bonmassar/Foss
combination. (See Appeal Br. 21.) As discussed above, we are not
persuaded that these shortcomings exist, and thus, we sustain the Examiner’s
rejection of claims 32, 42, and 53 under 35 U.S.C. § 103.
CONCLUSION
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
25–53, 55–57 101 Eligibility 25–53, 55–57
25–31, 33–41,
43–52, 55–57
103 Stewart,
Bonmassar,
Foss,
25–31, 33–41,
43–52, 55–57

32, 42, 53 103 Stewart,
Bonmassar,
Foss, Bradley
32, 42, 53
Overall
Outcome
25–53, 55–57

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).
AFFIRMED

13 Dianne Bradley and Kathryn Smith, The Process Communication Model,
Classroom Leadership, vol. 3, no. 1 (1999).