Robert C. Steiner

Patent Trials and Appeals Board

Mar 2, 2020

13836723 - (D) (P.T.A.B. Mar. 2, 2020)

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.
13/836,723 03/15/2013 Robert C. Steiner 4366-614 5057
48500 7590 03/02/2020
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
PAULSON, SHEETAL R.
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
03/02/2020 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
edocket@sheridanross.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 ROBERT C. STEINER

Appeal 2018-006385
Application 13/836,723
Technology Center 3600
____________

Before CYNTHIA L. MURPHY, BRUCE T. WIEDER, and
AMEE A. SHAH, Administrative Patent Judges.

MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant1 appeals the Examiner’s rejections of claims 1–20
under 35 U.S.C. § 101 (Rejection I) and 35 U.S.C. § 103 (Rejection II).
We sustain both of these rejections. Thus, 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”). “Avaya Inc. is the owner of the
patent application and the real party in interest.” (Appeal Br. 2.)
2 We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a).
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BACKGROUND
The Appellant provides a method involving a “contact center[]” that
“respond[s] to customer requests to provide sales, customer service, and
technical support.” (Spec. ¶ 2.) Thus, a contact center is a commercial
entity that commercially interacts with customers.
“[O]bjectives” are “defined by the contact center” and an
administrator (i.e., a person) monitors the “operational health” of the
contact center “based on” these objectives. (Spec. ¶ 3.) As the contact
center is a commercial entity, these objectives would have commercial
connotations. For example, these objectives could be “best practices” such
as “the business logic that will work best for the contact center.” (Zhakov
¶ 1.)3 Part of the administrator’s job is to make sure that the contact
center’s commercial interaction with customers is aligned with best
business practices.
When a customer calls a contact center, this contact will “flow in the
contact center.” (Spec. ¶ 6.) More particularly, the customer’s call will
follow a message-flow path in which certain events occur in a certain
sequence. (See id.) As the administrator of the contact center is aware of
the “objectives” of the contact center, he/she can identify message-flow
paths that are consistent with these objectives (i.e., message-flow paths
aligned with the contact center’s best business practices). (See id. ¶ 32.)
Thus, if these identified message-flow paths are compared to the
message-flow path of a customer’s call, this comparison would give the
administrator insight into “[h]ow well the contact center is running.” (Id.

3 US 2014/0140494 A1, published May 22, 2014.
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¶ 4.) More particularly, this comparison would give the administrator
insight into whether the contact center’s commercial interaction with this
customer is aligned with its best business practices.
For example, the administrator could identify the three-message flow
paths, diagrammed in Figure 4 below, as message-flow paths aligned with
the contact center’s best business practices.

In a first message-flow path, a customer calls the contact center, a
work item is added to the contact center’s to-do list (event 404), the
customer’s information is updated (event 408), and then the work item is
removed from the to do list (event 428). (See Spec. ¶ 42.) In a second
message flow path, a customer calls the contact center, a work item is added
to the contact center’s to-do list (event 404), the customer is offered the
opportunity to speak to an employee of the contact center (event 412), the
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customer rejects this offer (event 416), and then work item is removed from
the to-do list (event 428). (See id. ¶ 43.) In the third message-flow path, the
customer calls the contact center and a work item is added (event 404), the
customer is offered the opportunity to speak to an employee of the contact
center (event 412), the customer accepts this offer (event 420), the customer
speaks to this employee (event 424), and then the work item is removed
from the to-do list (event 428). (See id.)
If a call received by the contact center follows one of the three
message-flow paths diagrammed in Figure 4, this is symptomatic of the
contact center commercially interacting with this customer in a manner
aligned with its best business practices. (See Spec. ¶ 8.)
If a call received by the contact center does not follow one of the three
message-flow paths diagrammed in Figure 4, this is symptomatic of the
contact center commercially interacting with this customer in an abnormal
manner that might not be aligned with its best business practices. (See Spec.
¶ 8.) For example, if the customer is offered the opportunity to speak to an
employee of the contact center (event 412), and the customer accepts this
offer (event 420), the next event should be the customer speaking to an
employee to complete the work item (event 424). But if the next event is a
call termination (e.g., the customer hangs up because he/she has been
waiting too long to speak to an employee), the contact center may not be
commercially interacting with this customer in a manner aligned with its
best business practices.4

4 This abnormality could be pre-detected by a customer’s wait time between
accepting the offer to speak to an employee (event 420) and speaking to an
employee (event 424). For example, if the customer has already waited
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The Appellant’s method comprises the step of “building a grammar
that defines a series of events that can occur in the computation system as
well as an expected order of the series of events.” (Spec. ¶ 10.)5 In other
words, with the Appellant’s method, a computer is programmed to contain
information corresponding to the three message-flow paths diagrammed in
Figure 4. And this “programming of the grammar” may be done “by a
human administrator.” (Id. ¶ 32.)
ILLUSTRATIVE CLAIM
(with bracketed text inserted)
1. A method, comprising:
[(a)] building, by a microprocessor, a tree-structured
grammar that defines possible message flows associated with a
plurality of events that can occur in a contact center as well as
an expected order of the plurality of events;
[(b)] monitoring, by the microprocessor, message flows
in the contact center by a continuous comparison of each of the
monitored message flows against the possible message flows;
and
[(c)] based on the continuous comparison of the
monitored message flows with the possible message flows,
determining, by the microprocessor, that a message flow
violation has occurred in the contact center, the message flow
violation being associated with an abnormality in the monitored
message flows.

several minutes to speak to an employee, the administrator knows that the
customer is likely to terminate the call rather than continue waiting.
5 “As used herein, the term ‘grammar’ refers to a defined order of elements
(e.g., operations, steps, associations, dialogs, requests, responses, and
combinations thereof).” (Spec. ¶ 11.)
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REJECTION I
The Examiner rejects claims 1–20 under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more. (Final Action 2.) We
sustain this rejection.
Judicial Exceptions
The Patent Act defines subject matter eligible for patent protection as
“any new and useful process, machine, manufacture, or composition of
matter, or any new and useful improvement thereof.” (35 U.S.C. § 101. Yet
the Supreme Court has “long held” that this provision contains an important
implicit exception: “[l]aws of nature, natural phenomena, and abstract ideas
are not patentable.” (Ass’n for Molecular Pathology v. Myriad Genetics,
Inc., 569 U. S. 576, 589 (2013).) These three concerns are “judicially
created exceptions to § 101,” or more concisely, “judicial exceptions.”
(McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1311 (Fed.
Cir. 2016).) Thus, an “abstract idea” is a judicial exception to subject matter
(e.g., a process, a machine, or a system) that would otherwise be deemed
patent eligible under 35 U.S.C. § 101.
The Alice Test
In Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014), the Supreme
Court provided a two-step test to detect when an attempt is being made to
patent an abstract idea in isolation. (Id. at 217–18.) In Alice step one, a
determination is made as to whether the claim at issue is “directed to” an
abstract idea. (Id. at 218.) When doing Alice step one, attention can be
given to whether an abstract idea recited in the claim has been integrated
into a practical application. (See id. at 217.) While a judicial exception
(e.g., an abstract idea) cannot be patented, “an application” of a judicial
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exception “to a known structure or process may well be deserving of patent
protection.” (Diamond v. Diehr, 450 U.S. 175, 187 (1981); see also Bilski v.
Kappos, 561 U.S. 593 (2010).)
If the claim at issue is “directed to” an abstract idea, Alice step two
must be performed. (See Alice, 573 U.S. at 217–18.) In the second step of
the Alice test, 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. (Alice, 573 U.S. at 217–18.)
When making this determination, attention is given to whether additional
elements, and any ordered combination thereof, are “well-understood,”
“routine,” or “conventional.” (Id. at 225.)
The 2019 Guidance
The 2019 Revised Patent Subject Matter Eligibility Guidance (“2019
§ 101 Guidance”) provides us with specific steps for discerning whether a
claim passes the Alice test for patent eligibility. (See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019).) These
steps are “[i]n accordance with judicial precedent” and consist of a
two-pronged Step 2A and a Step 2B. (Id. at 52.)
Analysis
In the first prong of Step 2A (Prong One), we determine 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 “commercial or legal
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interactions.” (Id. at 52.) For example, a commercial entity’s interaction
with a customer for commercial reasons constitutes an abstract idea.6
Independent claim 1 recites a method comprising steps (a)–(c)
involving a “contact center” and “message flows in the contact center.”
(Appeal Br., Claims App.) As discussed above, a contact center “respond[s]
to customer requests to provide sales, customer service, and technical
support.” (Spec. ¶ 2.) Thus, a contact center is a commercial entity that
commercially interacts with customers for commercial reasons.
Step (a) recites defining “possible message flows associated with a
plurality of events that can occur in a contact center as well as an expected
order of the plurality of events.” (Appeal Br., Claims App.) Thus, step (a)
sets forth defining message-flow paths (e.g., the three message-flow paths
diagrammed in Figure 4) that are aligned with the contact center’s best
business practices. The administrator (i.e., a person) of a commercial entity
is aware of its best business practices, and part of his/her job is recognizing
which operational procedures are aligned with these best business practices.
Step (b) recites monitoring “message flows in the contact center by a
continuous comparison of each of the monitored message flows against the
possible message flows.” (Appeal Br., Claims App.) Thus, step (b) sets
forth comparing the flow-message paths defined in step (a) (e.g., the three
message-flow paths diagrammed in Figure 4) with the message-flow path of

6 In Inventor Holdings, LLC v. Bed, Bath & Beyond, Inc. 876 F.3d 1372,
1378 (Fed. Cir. 2017), a claim reciting a merchant’s interaction with a
customer for item-payment reasons was held to recite an abstract idea; and
in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014), a
claim reciting a content-sponsoring entity’s interaction with a consumer for
advertising reasons was held to recite an abstract idea.
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a customer’s call. If the customer’s call follows one of the identified
message-flow paths (e.g., it follows one of the three message-flow paths
diagrammed in Figure 4), the administrator knows that this is symptomatic
of the contact center commercially interacting with this customer in a
manner aligned with its best business practices.
Step (c) recites determining, based on the comparison done in step (b),
“that a message flow violation has occurred in the contact center” which is
“associated with an abnormality in the monitored message flows.” (Appeal
Br., Claims App.) Thus, step (c) sets forth that, if the customer’s call does
not follow any of the message-flow paths defined in step (a) (e.g., it does not
follow any of the three message-flow paths diagrammed in Figure 4), the
administrator knows that this is symptomatic of the contact center
commercially interacting with this customer in an abnormal manner (which
might not align with its best business practices).
Consequently, independent claim 1 recites steps done by the
administrator of a commercial entity to make sure that the entity’s
commercial interaction with customers is aligned with its best business
practices. A commercial interaction is a certain method of organizing
human activity that constitutes an abstract idea. (See 2019 § 101 Guidance,
84 Fed. Reg. at 52.)
Thus, independent claim 1 recites an abstract idea under Prong One of
Step 2A of the 2019 § 101 Guidance, and so we proceed to Prong Two of
Step 2A of the Guidance.
In the second prong of Step 2A (Prong Two), we determine “whether
the claim as a whole integrates the recited judicial exception into a practical
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application of the exception.” (2019 § 101 Guidance, 84 Fed. Reg. at 54.)7
In doing this determination, we identify “whether there are any additional
elements in the claim beyond the abstract idea,” and we evaluate “those
additional elements individually and in combination to determine whether
they integrate the exception into a practical application.” (Id. at 54–55.)
Independent claim 1 requires “a microprocessor” to be involved in the
performance of steps (a)–(c). (Appeal Br., Claims App.) When an
additional element in a claim is a “computer,” the relevant question is not
whether the claim requires the computer to accomplish a recited function.
(Alice, 573 U.S. at 223.) Rather, “the relevant question” is whether the
claim does more than simply “instruct the practitioner to implement the
abstract idea” on a computer. (Id. at 225.) The mere recitation of a
computer in the claim, and/or words simply saying “apply” the abstract idea
“with a computer,” will not transform the abstract idea into a patent-eligible
invention. (Id. at 223.) In short, the sheer introduction of a computer into
the claim is not enough to “impart patent eligibility.” (Id.)
More specifically, independent claim 1 requires the microprocessor to
build “a tree-structured grammar” that defines the message-flow paths
recited in step (a). (Appeal Br., Claims App.) Thus, claim 1 merely requires
a computer to be somehow programmed to define message-flow paths (e.g.,
the three message-flow paths diagrammed in Figure 4) identified by an

7 “A claim that integrates a judicial exception into a practical application
will apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” (2019 § 101
Guidance, 84 Fed. Reg. at 53.)
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administrator as aligned with the contact center’s best business practices.
And this “programming of the grammar” may be done “by [the] human
administrator.” (Spec. ¶ 32.)
Independent claim 1 requires the monitoring recited in step (b), and
the determining recited in step (c), to be done “by the microprocessor.”
(Appeal Br., Claims App.) Thus, claim 1 merely requires a computer to
somehow assess whether the message-flow path of a customer’s call is
following a defined message-flow path (e.g., one of the three flow-message
paths diagrammed in Figure 4), as this comparison will show whether the
contact center is commercially interacting with a customer in a desired or
abnormal manner.
Thus, the recital of a “microprocessor” and “grammar” in independent
claim 1 simply instruct a practitioner to use a computer to implement steps
done by a commercial entity to make sure that its commercial interaction
with customers is aligned with best business practices.
Consequently, the microprocessor and the grammar recited in
independent claim 1 do, not individually, integrate the abstract idea into a
practical application. But, sometimes, “it is the combination of elements
that provide the practical application.” (2019 § 101 Guidance, 84 Fed. Reg.
at 55.) As such, we must give “careful consideration” to how computer
components are “used or arranged in the claim as a whole.” (Id.)
Here, however, independent claim 1 does not require any particular
relationship between the microprocessor and the grammar, other than
perhaps the microprocessor being programmed (e.g., by a human
administrator) to build this grammar. And, claim 1 does not require the
microprocessor to coordinate with other computer components, and thus
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cannot require the microprocessor to reside within a particular arrangement
of coordinating computer components.
Consequently, independent claim 1 does not integrate the recited
abstract idea (i.e., a commercial entity making sure that its commercial
interactions with customers are aligned with its best business practices) into
a practical application under Prong Two of Step 2A, and so we proceed to
Step 2B.
In Step 2B, we evaluate whether the additional elements recited in the
claim, individually or in combination, amount to “significantly more” than
the abstract idea itself. (2019 § 101 Guidance, 84 Fed. Reg. 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, and the claim fails the Alice test for patent
eligibility. (Id.)
Here, the Specification conveys that the steps (a)–(c) are performed
by a “health monitoring module” that apparently encompasses the
microprocessor and the grammar-building software. (Spec. ¶ 32.) And this
module can be “any known” hardware, software, firmware, artificial
intelligence, fuzzy logic, or combination of hardware and software” that is
“capable of performing the functionality” associated with this module. (Id.
¶ 13.) Moreover, as mentioned above, claim 1 does not require the
microprocessor to coordinate with other computer components.8

8 Even if claim 1 did require the microprocessor to communicate with the
administrator and/or customers, the Specification states that the associated
computer components could be conventional; and that this communication
could be accomplished via “any type of known communication medium or
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Consequently, claim 1’s additional elements, when considered
individually, and when considered as an ordered combination, do not add
significantly more to the abstract idea.
Thus, we agree with the Examiner that independent claim 1 does not
pass the Alice test for patent eligibility.
The Appellant’s Arguments
The Appellant advances arguments premised upon independent
claim 1 not being directed to an abstract idea, but rather to “a patent eligible
improvement, e.g., an improvement to computer-related technology.”
(Appeal Br. 10.) And the Appellant cites Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327 (Fed. Cir. 2016), Visual Memory LLC v. NVIDIA Corp., 867
F.3d 1253 (Fed. Cir. 2017), and McRO, Inc. v. Bandai Namco Games
America Inc., 837 F.3d 1299 (Fed. Cir. 2016) to support these arguments.
(Id.)
In Enfish, the problem solved by the invention stemmed from the
shortcomings of prior art computer databases due to their attendant “logic
models.” (Enfish, 822 F.3d at 1330.)9 With the prior art models, “extensive
modeling and configuration of the various tables and relationships [among
the tables]” needed to be done “in advance of launching the database.” (Id.
at 1333.) And subsequent data entry had to conform to this predefined
structure (see id. at 1337), with each data “entity” being entered into “a

collection of communication media and may use any type of protocols to
transport messages between endpoints.” (Spec. ¶ 22.)
9 “A logical model is a model of data for a computer database explaining
how the various elements of information are related to one another.”
(Enfish, 822 F.3d at 1330.)
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separate table” (id. at 1330). With the Enfish invention, “all data entities”
could be entered into a “single table.” (Id.) This improvement created a
“self-referential” database that, among other things, could be “configured on
the fly.” (Id. at 1333.)
In Visual Memory, the problem solved by the invention stemmed from
the shortcomings of prior art computer “memory systems.” (Visual Memory,
867 F.3d at 1255.) Specifically, “[t]hese prior art memory systems lacked
versatility because they were designed and optimized based on the specific
type of processor.” (Id.) And, inasmuch as “prior art memory systems
possessed the flexibility to operate with multiple different processors, this
one-size-fits-all approach frequently caused a tradeoff in processor
performance.” (Id. at 1259.) With the Visual Memory system, “a
programmable operational characteristic” determined “a type of data stored
by said cache.” (Id. at 1257.) This improvement allowed the same memory
system to be used with different types of processors without a compromise
in processor performance. (Id. at 1259.)
Here, the Appellant is not trying to cure a shortcoming in existing
computer technology. The Appellant does not contend that it was necessary
to develop innovative computer hardware/software in order to perform the
steps recited in independent claim 1. For example, the Appellant does not
contend that known database logic models, memory systems, and/or
microprocessors were incapable of building a grammar and analyzing
message-flow paths based on this grammar. Indeed, with the Appellant’s
invention, the “module” responsible for the grammar-building, monitoring,
comparing, and determining steps can be “any known” hardware, software,
or combination thereof.” (Spec. ¶ 13.)
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The Appellant seems to be saying that it “improves” computer
technology because independent claim 1 recites “features that can increase
the speed at which message flow violations occur in a contact center.”
(Appeal Br. 8, see also Reply Br. 2–3.) Insofar as the Appellant is
contending that a computer can compare message-flow paths faster than a
human administrator (and therefore detect abnormal message-flow paths
more quickly), we do not necessarily disagree with this contention.
However, using a computer to perform a task “more quickly or more
accurately” is not, in and of itself, a ticket into patent-eligible territory. (OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015).)
The Appellant also contends that its invention can “collect and
correlate information in real-time to catch abnormal or unexpected
operations prior to a fault, and respond to the abnormal or unexpected
operations quickly and efficiently, thereby preserving resources.” (Reply
Br. 4.) However, independent claim 1 only requires a determination (based
on the continuous comparison) that “a message flow violation has occurred”
(Appeal Br., Claims App.); it does not require the message flow violation to
be detected before it occurs.10 And claim 1 does not require any response

10 Dependent claim 4 (not separately argued) sets forth “a pre-event
notification” that is “based on the detected at least one of the monitored
message flow” which is “between two expected events in the plurality of
events,” and dependent claim 7 (not separately argued) sets forth the
identification of a “message flow violation” by “detecting a pattern before
the abnormality associated with the message flow violation occurs.”
(Appeal Br., Claims App.) We note that an administrator can pre-detect a
potential problem by, for example, a customer’s wait time between
sequential events. For example, if the customer has already waited several
minutes to speak to an employee, the administrator knows that the contact
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once it has been determined that a message flow violation has occurred,
much less a quick, efficient, and/or resource-preserving response.
We appreciate that, in a typical contact center, customer calls are
routed (i.e., message-flow paths are controlled) by computerized call-routing
technology. (See Spec. ¶ 2.) And claim 1 may indeed address commercial
interactions “existing in the realm of [such] computation systems.” (Final
Action 11.) However, the claim does not “recite an improvement” that cures
a technical shortcoming in computerized call routing. (Id.) The claimed
method merely allows an administrator to more quickly and efficiently
evaluate whether the contact center is performing in a manner aligned with
its best business practices. Even if claim 1 links steps (a)–(c) to the
technological environment of a computerized contact center, this does not
render it any less abstract. (See 2019 § 101 Guidance, 84 Fed. Reg.at 55.)11
As for McRO, the Appellant seems to saying that this case stands for
the proposition that, if a computer does a computation that was not
previously done by a person, this equates to patent eligibility. According to
the Appellant, independent claim 1 does not recite “methods of monitoring
and comparing message flows that have been used by humans or by existing
machines.” (Appeal Br. 10.) Even if this interpretation of the Federal
Circuit’s holding in McRO was correct, we are not sure it helps the

center’s interaction with this customer is unlikely to follow one of the three
message-flow paths diagrammed on Figure 4.
11 For example, in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350
(Fed. Cir. 2016), the Federal Circuit held that “limiting the claims to the
particular technological environment of power-grid monitoring [was],
without more, insufficient to transform them into patent-eligible applications
of the abstract idea at their core.” (Electric Power, 830 F.3d. at 1354.)
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Appellant’s cause. In McRO, the claimed automation (which was achieved
via a “set of rules”) was not for “carrying out a fundamental economic
practice” or any other abstract idea. (McRO, 837 F.3d at 1315.) Rather, in
McRO, the claimed automation created a non-abstract “sequence of
synchronized, animated characters.” (Id.) Here, the claimed automation is
for doing what “[a]n administrator” has traditionally done to monitor the
“operational health” of a contact center “based on objects and features
defined by the contact center.” (Spec. ¶ 3.)
Thus, after careful consideration of the Appellant’s arguments, we are
not convinced that the Examiner wrongly concluded that independent
claim 1 is directed to a judicial exception without significantly more.
Summary
We agree with the Examiner that independent claim 1 does not pass
muster under 35 U.S.C. § 101. The Appellant argues the claims on appeal as
a group for this rejection (see Appeal Br. 10), and thus claims 2–20 fall with
claim 1.12
REJECTION II
The Examiner rejects claims 1–20 under 35 U.S.C. § 103 as being
unpatentable over Zhakov and Nassehi.13 (Final Action 6.) We sustain this
rejection.

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).)
13 US 6,889,218 B1, issued May 3, 2005.
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Obviousness
“[O]bviousness requires a suggestion of all limitations in a claim.”
(CFMT, Inc. v. Yieldup Int'l Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003).)
However, there need not be “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.” (KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007).) For
example, when “a structure already known in the prior art [] is altered by the
mere substitution of one element for another known in the field, the
combination must do more than yield a predictable result” in order to be
considered nonobvious. (Id. at 416.)
Analysis
Independent claim 1 recites defining “possible message flows
associated with a plurality of events that can occur in a contact center as well
as an expected order of the plurality of events,” monitoring “message flows
in the contact center by a continuous comparison of each of the monitored
message flows against the possible message flows,” and determining “that a
message flow violation has occurred in the contact center, the message flow
violation being associated with an abnormality in the monitored message
flow.” (Appeal Br., Claims App.)
The Examiner finds that Zhakov teaches defining “possible message
flows associated with a plurality of events that can occur in a contact center
as well as an expected order of the plurality of events” (Final Action 6); and
the Examiner finds that Zhakov discloses “monitoring” and “compar[ing]”
message flows in a contact center, and “determining” when an abnormality
occurs (id. at 7). Zhakov discloses a method for managing a contact center
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which uses a “learning algorithm” to “generate, optimize, and maintain one
or more reference models of best practices for a contact center.” (Zhakov
¶ 39.) Zhakov also discloses that the reference models are used to define
“routing rules” for a contact center (id. ¶ 40), and that the contact center can
be “alerted” if a “deviation in routing strategies” occurs. (Id. ¶ 64.)
Independent claim 1 requires “a tree-structured grammar” to define
the “possible message flow paths.” (Appeal Br., Claims App.)
The Examiner finds that Zhakov teaches “a tree ensemble method for
the learning algorithm.” (Final Action 7.) In Zhakov, “a list of business
outcomes/dispositions that may indicate customer satisfaction” is
maintained, and the “activities of various contact centers” are monitored to
see if they “lead to one or more outcomes in the list.” (Zhakov ¶ 43.) The
learning algorithm “extracts patterns based on the monitored activities and
associated outcomes,” and these “patterns” can include, for example, “the
number of transfers that were done during the call.” (Id.) Thus, Zhakov’s
learning algorithm defines possible message-flow paths (i.e., event streams
of certain events that occur in a certain sequence) which are aligned with
customer satisfaction (i.e., best business practices).
The Examiner finds that Nassehi teaches “a tree-structured grammar
for an event stream.” (Final Action 7.) Nassehi discloses a method
comprising the steps of “us[ing] a tree structure comprising a suffix tree and
suffixes to extract a grammar (a set of rules) from a sample of normal
behavior.” (Nassehi 2:60–64; see also Fig. 1A.) Nassehi also discloses
“check[ing] the event stream against the rules of the grammar to detect
deviations,” and “inform[ing] a system administrator of anomalies.”
(Id. 3:19–22.)
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The Examiner determines that it would have been obvious to
substitute Nassehi’s grammar-related steps into Zhakov’s method for
managing the routing strategy of a contact center. (Final Action 9.) This
substitution would result in Zhakov building a tree-structured grammar that
defines routing rules aligned with best business practices, continuously
checking the course of customer calls against this grammar, and informing
an administrator if the course of a customer’s call deviates from the
grammar.
Thus, the Examiner adequately establishes that the method recited in
independent claim 1 would have been obvious over the combined teachings
of Zhakov and Nassehi.
The Appellant’s Arguments
The Appellant argues that “the prior art fails to teach or suggest the
claimed limitations.” (Appeal Br. 11.) According to the Appellant, “Zhakov
fails to teach or suggest every limitation recited by the present claims.” (Id.)
And, according to the Appellant, “Nassehi does not show or suggest that
which Zhakov lacks.” (Id. at 12.)
The Appellant contends that “Zhakov cannot be said to teach or
suggest the [claimed] possible message flows.” (Appeal Br. 12.) Although
the Appellant acknowledges that Zhakov describes “monitor[ing] activities”
of contact centers “to extract patterns,” the Appellant asserts that a person of
ordinary skill in the art would understand these “patterns” to be “single
statistical occurrences,” not “message flows” as required by the claims. (Id.
at 11.) However, as acknowledged by the Appellant, the “patterns”
extracted by Zhakov’s learning algorithm include the “number of transfers
done to a call,” which is a series of events (in a certain sequence) beginning
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with a customer’s call and subsequent transfer events thereafter. Thus,
contrary to the Appellant’s contention, Zhakov is not “silent” regarding “any
message flows that are associated with a plurality of events that can occur in
a contact center, and any expected order of such a plurality of events.” (Id.
at 11–12.)14
Moreover, Nassehi teaches “extract[ing] patterns” from a stream of
events possessing “normal behavior,” and “reduc[ing] the patterns into
rules” to build a grammar that can used for “anomaly detection.” (Nassehi
3:3–13.) As for a “pattern” consisting of a “single statistical occurrence,”
Nassehi defines a “pattern” as a “sequence of events which occurs more than
once.” (Id. 3:48–51.) And Nassehi evidences that a “well-known” approach
to the “extraction of patterns” is the “suffix-tree approach.” (Id. 3:50–51.)
The Appellant contends that “Zhakov is silent regarding any
continuous comparison as recited by the present claims.” (Appeal Br. 12.)
As discussed above, Zhakov discloses the detection of “deviation in routing
strategies” by comparison of the “customer interactions” with established
data. (See Zhakov ¶ 64.) Furthermore, Nassehi discloses continuously
comparing an event stream (i.e., a series of events in a certain sequential
order) “against the rules of grammar” to detect anomalies, so that the
administrator can be “inform[ed] of the anomalies.” (Nassehi 3:19–22.)

14 For example, Zhakov’s learning algorithm could “learn” that, when a
customer’s call is transferred more than three times, there is a likelihood of
customer dissatisfaction; but, when a customer’s call is transferred three or
less times, customer satisfaction is not compromised. This means that there
are three possible flow-message paths that are aligned with best business
practices, namely a one-transfer call (two events), a two-transfer call (three
events), and a three-transfer call (four events). (See, e.g., Zhakov ¶ 45.)
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Thus, after careful consideration of the Appellant’s arguments, we
still conclude that the Examiner has established sufficiently that independent
claim 1 would have been obvious over the combined teachings of Zhakov
and Nassehi.
Summary
The Examiner’s determination that independent claim 1 is
unpatentable under 35 U.S.C. § 103 is adequately supported by the record.
The Appellant argues the claims on appeal as a group for this rejection (see
Appeal Br. 12–13), and thus claims 2–20 fall with claim 1.15
CONCLUSION
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 101 Judicial Exception 1–20
1–20 103 Zhakov, Nassehi 1–20
Overall
Outcome
1–20

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

15 “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).) “A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim.” (Id.)