Paper: 48
`Trials@uspto.gov
`571-272-7822 Entered: July 16, 2018
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, ROBERT J. WEINSCHENK,
`and JASON W. MELVIN, Administrative Patent Judges.
`
`CRUMBLEY, Administrative Patent Judge.
`
`
`
`
`
`
`
`LIVEPERSON, INC.,
`Petitioner,
`
`v.
`
`24/7 CUSTOMER, INC.,
`Patent Owner.
`_____________
`
`Case IPR2017-00610
`Patent 9,077,804 B2
`____________
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318 and 37 C.F.R. § 42.73
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: July 16, 2018
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, ROBERT J. WEINSCHENK,
`and JASON W. MELVIN, Administrative Patent Judges.
`
`CRUMBLEY, Administrative Patent Judge.
`
`
`
`
`
`
`
`LIVEPERSON, INC.,
`Petitioner,
`
`v.
`
`24/7 CUSTOMER, INC.,
`Patent Owner.
`_____________
`
`Case IPR2017-00610
`Patent 9,077,804 B2
`____________
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318 and 37 C.F.R. § 42.73
`
`
`
`
`
`IPR2017-00610
`Patent 9,077,804 B2
`
`
`I. INTRODUCTION
`In this inter partes review trial, instituted pursuant to 35 U.S.C. § 314,
`Petitioner LivePerson, Inc. challenges the patentability of claims 1–3, 5, 8–9,
`and 16 of U.S. Patent No. 9,077,804 B2 (Ex. 1001, “the ’804 patent”),
`owned by 24/7 Customer, Inc.
`We have jurisdiction under 35 U.S.C. § 6(b). This Final Written
`Decision, issued pursuant to 35 U.S.C. § 318(a), addresses issues and
`arguments raised during trial. For the reasons discussed below, we
`determine that LivePerson has proven, by a preponderance of the evidence,
`that claims 1–3, 5, 8–9, and 16 of the ’804 patent are unpatentable.
`
`A. Procedural History
`
`On January 6, 2017, LivePerson requested an inter partes review of
`claims 1–10 of the ’804 patent. Paper 1, “Pet.” 24/7 Customer filed a Patent
`Owner Preliminary Response. Paper 7, “Prelim. Resp.” In a Decision on
`Institution of Inter Partes Review (Paper 9, “Dec. on Inst.”), we instituted
`trial as to claims 1–3, 5, 8–9, and 16 on the following grounds of
`unpatentability:
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`1. Whether claims 1–3, 5, 8–9, and 16 are unpatentable under 35
`U.S.C. § 103(a),1 as having been obvious over the combined
`disclosures of Busey2 and Yoshida;3 and
`2. Whether claim 9 is unpatentable under 35 U.S.C. § 103(a), as
`having been obvious over the combined disclosures of Busey,
`Yoshida, and Lewis-Hawkins.4
`Dec. on Inst. 20.
`Following institution, 24/7 Customer filed a Patent Owner Response
`(Paper 21, “PO Resp.”), and LivePerson filed a Reply (Paper 28, “Pet.
`Reply”).
`LivePerson supported its Petition with the Declaration of Stuart J.
`Lipoff. Ex. 1003. 24/7 Customer took cross-examination of Mr. Lipoff via
`deposition, and filed the transcript in the record. Ex. 2011. With its Reply,
`LivePerson submitted a second Declaration by Mr. Lipoff. Ex. 1017.
`With its Patent Owner Preliminary Response, 24/7 Customer
`submitted the Declaration of Arthur T. Brody, Ph.D. (Ex. 2001), and
`submitted a second Declaration by Dr. Brody with its Patent Owner
`
`
`1 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, took effect on March 16, 2013. Because the application
`to which the ’876 patent claims priority was filed before that date, our
`citations to Title 35 are to its pre-AIA version.
`2 U.S. Patent Application Pub. No. 2006/0188086 A1 to Busey et al.,
`published Aug. 24, 2006 (Ex. 1007).
`3 U.S. Patent 7,330,873 B2 to Yoshida et al., issued Feb. 12, 2008 (Ex.
`1008).
`4 U.S. Patent Application Pub. No. 2010/0100490 A1 to Lewis-Hawkins,
`published Apr. 22, 2010 (Ex. 1013).
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`Response (Ex. 2010). LivePerson took cross-examination testimony of
`Dr. Brody via deposition, and submitted the transcript. Ex. 1018.
`24/7 Customer filed a Motion to Exclude certain evidence submitted
`by LivePerson with its Reply (Paper 38, Attachment A,5 “Mot.”), to which
`LivePerson filed an Opposition (Paper 33, “Mot. Opp.”) and 24/7 Customer
`filed a Reply (Paper 34, “Mot. Reply”).
`An oral hearing was held on April 10, 2018, and a transcript of the
`oral hearing is available in the record. Paper 40 (“Tr.”).
`On May 3, 2018, we expanded the scope of this proceeding to include
`review of all challenged claims and all grounds presented in the Petition.
`Paper 41; see United States Patent and Trademark Office, Guidance on the
`impact of SAS on AIA trial proceedings, PATENT TRIAL AND APPEAL
`BOARD TRIALS (April 26, 2018), https://go.usa.gov/xQ93y. This added
`three challenges to claim 11 of the ’804 patent to the trial, on the following
`grounds:
`1. Whether claim 11 is unpatentable under 35 U.S.C. § 103 as having
`been obvious over the combined disclosures of Busey and
`Yoshida;
`2. Whether claim 11 is unpatentable under 35 U.S.C. § 103 as having
`been obvious over the combined disclosures of Busey, Yoshida,
`and Light;6 and
`
`
`5 24/7 Customer served, but inadvertently did not file, its Motion to Exclude
`at the appropriate time. We alerted the parties to this fact during the oral
`hearing, and LivePerson indicated that it would not oppose 24/7 Customer’s
`late submission of the Motion. Tr. 52. We granted a Motion to Excuse Late
`Action and accepted the late filing of the Motion to Exclude. Paper 39.
`6 U.S. Patent Application Pub. No. 2008/0052377 A1 to Light, published
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`3. Whether claim 11 is unpatentable under 35 U.S.C. § 103 as having
`been obvious over the combined disclosures of Busey, Yoshida,
`Light, and Bogart.7
`The parties subsequently filed a Stipulation to Withdraw Claim 11 of
`the ’804 Patent from Petition, withdrawing all grounds relating to claim 11
`from the trial. Paper 44. This Final Written Decision, therefore, does not
`address the patentability of claim 11.
`
`B. The ’804 Patent
`
`The ’804 patent, titled “Interaction Management,” issued July 7, 2015,
`from U.S. Patent Application No. 14/251,527 (“the ’527 application”), filed
`on April 11, 2014. Ex. 1001, (54), (45), (21), (22). The ’527 application
`was a continuation of application No. 13/626,770, which issued as U.S.
`Patent No. 8,737,599, and claims priority to provisional application No.
`61/563,434, filed November 23, 2011. Id. at (60), (63).
`The ’804 patent is directed to an apparatus and method for managing
`online customer/customer service agent interactions, and optimizing them
`“from an agent’s perspective across multiple channels, such as chat, voice,
`etc.” Id. at 2:24–26. The customer and agent interact via an “interaction
`engine,” which may use chat, voice, or a combination of chat and voice, and
`may permit a supervisor to monitor the interaction. Id. at 2:30–35. The
`agent may use the interaction engine to send the customer a link to an
`application via the interaction engine, or the link may be pushed to the
`
`
`Feb. 28, 2008 (Ex. 1009).
`7 U.S. Patent 6,163,607 to Bogart et al., issued Dec. 19, 2000 (Ex. 1014).
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`customer’s smartphone using SMS or otherwise. Id. at 2:31–40. The
`customer may launch the application on an application server via the link,
`and the agent may monitor the progress of the customer via the interaction
`engine. Id. at 2:41–47.
`Additional features of the invention are described in various
`embodiments of the ’804 patent. For instance, the interaction engine may
`permit the session to end while a monitoring application continues to
`monitor the progress of the customer, and the agent may re-initiate the
`session if certain factors indicate that the user requires assistance, for
`example by taking too long to input requested information. Id. at 2:45–3:8.
`The interaction engine may also provide suggested responses to the agent for
`certain customer scenarios, or the monitoring supervisor may suggest certain
`responses, from which the agent may select the appropriate one. Id. at 4:42–
`48, 5:18–24. The interaction engine may also provide a command module,
`through which the agent may enter commands such as looking up customer
`data. Id. at 4:59–5:11.
`
`C. Illustrative Claim
`
`Of the challenged claims, claims 1 and 16 are independent. Claim 1 is
`
`reproduced below:
`1. Apparatus for management of online customer/agent
`interaction across multiple channels, comprising:
`a processor implemented interaction engine that is configured
`for accessibility by at least one customer and at least one
`agent for interaction during a session between said at least
`one customer and said at least one agent via any of chat,
`voice, and a combination of chat and voice as the mode of
`interaction;
`
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`said interaction engine configured to send a link to said
`customer at said agent's request to allow said customer to
`access an application at a processor
`implemented
`application server on which said application is resident
`and to which said link is resolved for customer access to,
`and launching of, said application; and
`said interaction engine configured to allow said agent to
`proactively monitor progress of the customer while the
`customer is using said application.
`Ex. 1001, 8:51–67. Claim 16 is a method claim counterpart to the apparatus
`of claim 1, and mirrors claim 1’s structure. Id. at 10:20–36.
`II. ANALYSIS
`
`A. Claim Construction
`
`For purposes of our Decision on Institution, LivePerson asked that we
`
`construe the term any of, which appears in two contexts in the challenged
`claims: claim 3 recites that a “link is sent in any of an interaction window
`and via SMS or native notification,” while claim 9 recites “performing
`additional functions comprising any of” several alternatives. LivePerson
`contended that the broadest reasonable interpretation of this term in both
`contexts is “one or more of.” Pet. 6–9. We agreed with 24/7 Customer that
`it was not necessary to construe the term, because no ground of invalidity
`asserted by LivePerson depended on a particular construction of any of.
`Dec. on Inst. 6; see Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
`795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in
`controversy, and only to the extent necessary to resolve the controversy.”).
`Neither party argued during trial that a construction for any of was
`necessary.
`
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`In its Patent Owner Response, 24/7 Customer proposed constructions
`
`for several terms that the parties did not brief prior to institution. We
`address each construction below.
`
`1. application
`Claims 1 and 16 require that the interaction engine send a link to the
`customer at the agent's request, “to allow said customer to access an
`application at a processor implemented application server.” 24/7 Customer
`asks that we construe the term application to have its plain and ordinary
`meaning, but does not explain what that meaning is. PO Resp. 15–16. Dr.
`Brody testified in support of 24/7 Customer’s Response that “[a]pplications
`operate on data and files that are either available locally or must be obtained
`from another source,” and provided examples such as “Microsoft Word,
`Microsoft Excel, Adobe Photoshop, and web browsers such as Microsoft
`Explorer and Google Chrome” that fall within the plain meaning of
`application. Ex. 2010 ¶¶ 32–33.
`LivePerson agrees that the term should be given its plain meaning, but
`argues that 24/7 Customer is attempting to exclude from the scope of the
`construction dynamic web pages that execute within browsers. Pet. Reply 6.
`LivePerson cites Dr. Brody’s testimony during cross-examination that “the
`’804 patent does not limit what an application means.” Id. (citing Ex. 1018,
`72:5–21, 117:15–22).
`Upon consideration of the parties’ positions, we do not believe there
`to be much dispute about the construction of application. The parties’
`dispute appears to be over the application of this construction to the prior art,
`as opposed to the construction itself. We agree with the parties that the term
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`should be given its plain meaning, and do not consider the list of exemplary
`applications provided by Dr. Brody to be an attempt to limit the term to only
`those examples. We also agree with Dr. Brody’s testimony that, in common
`usage, an application is something that operates on data or files.
`
`2. proactively monitor
`Claims 1 and 16 also require that the interaction engine allow the
`agent to “proactively monitor progress of the customer” while using the
`application. 24/7 Customer argues that, in the context of the ’804 patent,
`proactively monitor means to monitor using alerts. PO Resp. 16–17. 24/7
`Customer notes that the ’804 patent discusses certain events, such as a
`customer spending too much time on a particular web page, that will “raise
`alerts” based on “threshold based proactive monitoring alerts.” Id. (citing
`Ex. 1001, 3:53–4:9, 4:50–55. It is the presentment of these alerts to the
`agent that permits the agent’s monitoring to be proactive, in 24/7 Customer’s
`view.
`
`LivePerson argues that 24/7 Customer’s interpretation of proactively
`monitor is too narrow and improperly limits the scope of the term to alert-
`based monitoring. Pet. Reply 9–10. LivePerson observes that the portion of
`the specification cited by 24/7 Customer discussed above actually refers to a
`“monitoring module” that raises alerts to the supervisor of the agent, which
`is a function distinct from the monitoring performed by the agent. Id. Other
`portions of the specification, by contrast, discuss an agent re-initiating a
`session with a customer “based on the agent monitoring the progress of the
`customer or based on alerts generated by the interaction engine.” Ex. 1001,
`2:56–60 (emphasis added). LivePerson argues that this shows that the ’804
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`patent treats alerting as a distinct concept from monitoring, and therefore
`proactive monitoring need not be performed using alerts. Pet. Reply 10.
`LivePerson also notes that claim 6, which depends from claim 1, further
`requires an alerting function, suggesting that alerting is distinct from the
`proactive monitoring recited in claim 1. Id. Finally, LivePerson directs us
`to the cross-examination testimony of Dr. Brody, during which Dr. Brody
`testified that alerts are only an example of a method by which the monitoring
`takes place, and the claims are not limited to alerts. Ex. 1018, 205:18–23,
`210:6–12.
`We agree with 24/7 Customer, to an extent. As 24/7 Customer notes,
`the common usage of “proactive” is “acting in advance to deal with an
`expected difficulty; anticipatory” or “acting in anticipation of future
`problems, needs, or changes.” PO Resp. 18 (citing dictionaries). There is
`no suggestion in the specification of the ’804 patent that the inventors
`intended to depart from this meaning. Certainly, an alert may be one way
`for an agent to act proactively and anticipate a customer’s problems before
`they occur, for example when a customer spends too much time on a
`particular webpage. Ex. 1001, 2:56–60. But the ’804 patent is not limited to
`using such alerts, and discusses them as an alternative to “the agent
`monitoring the progress of the customer” in which the agent “just keep[s]
`the customer company while the customer performs Web based self
`service.” Id. at 2:58–59, 3:6–8. According to the patent, both of these
`methods—automatically-triggered alerts or “just keeping the customer
`company”—permit an agent to anticipate a customer’s problems before they
`arise. Either alternative, therefore, falls within the meaning of proactively
`
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`monitor as used in the claims, and we see no reason to adopt 24/7
`Customer’s narrower construction that requires alerts.
`We conclude that the broadest reasonable interpretation of proactively
`monitor consistent with the specification of the ’804 patent is any method of
`monitoring that permits an agent to anticipate a customer’s problems before
`they arise.
`
`3. application server
`Claims 1 and 16 require a “processor implemented application
`server” on which the application is resident. 24/7 Customer asks that we
`construe this as “a server where the application resides,” as the term was
`construed by the District Court. PO Resp. 19. The result of this
`construction, 24/7 Customer argues, is that the server is on a network that is
`remote from other devices on the network, such as the customer’s device.
`Id. at 20. LivePerson agrees with the formulation of 24/7 Customer’s
`proposed construction, “a server where the application resides,” but not its
`effect. Pet. Reply 8. According to LivePerson, there is no reason in the ’804
`patent to require that the server be remote from the customer’s device. Id.
`The parties’ agreed construction is consistent with its usage in the
`’804 patent, thus we will adopt the proposed construction and interpret
`application server to mean “a server where the application resides.” As
`discussed below, however, resolving the question whether the server must be
`remote from the customer is not necessary to resolving the parties’ dispute in
`this case, and therefore we decline to construe the term further. See Vivid
`Techs., 200 F.3d at 803; see also Tr. 40 (24/7 Customer’s counsel conceding
`that “[t]he construction of server is relevant based on the argument that
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`starting a web browser on the customer’s device . . . satisfies the claim
`limitation.”).
`
`B. 24/7 Customer’s Motion to Exclude
`
`Before turning to the merits of the parties’ arguments, we first
`determine the scope of the record by addressing 24/7 Customer’s Motion to
`Exclude. In its Motion, 24/7 Customer seeks to exclude several exhibits
`submitted with LivePerson’s Reply, specifically Exhibits 1019–1022, 1024,
`and paragraph 9 of Exhibit 1017. Mot. 1. For the following reasons, we
`deny the motion.
`First, 24/7 Customer argues that Exhibits 1019–1022 should be
`excluded as irrelevant under Federal Rule of Evidence (“FRE”) 402 as being
`prior art beyond the scope of the Board’s institution decision. Id. We find
`this argument unpersuasive for several reasons. LivePerson does not cite
`these exhibits as part of the proposed grounds of unpatentability, as 24/7
`Customer alleges; rather, the exhibits are relied upon as evidence of the
`background level of skill and how a person of ordinary skill in the art would
`have interpreted the references that were cited as part of the ground of
`unpatentability, such as Busey. For example, Mr. Lipoff cites the reply
`exhibits as evidence that as of the date of invention, “the vast majority of
`web pages were not simply static HTML, but contained some dynamically
`generated elements. A person of ordinary skill reading Busey . . . would not
`limit the term ‘web pages’ to static HTML content.” Ex. 1017 ¶ 9 (emphasis
`added). As the Federal Circuit has stated, “[a]rt can legitimately serve to
`document the knowledge that skilled artisans would bring to bear in reading
`the prior art identified as producing obviousness,” and that the Board cannot
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`decline to consider such art “simply because [it] had not been identified at
`the petition stage as one of the pieces of prior art defining a combination for
`obviousness. Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359,
`1365 (Fed. Cir. 2015).
`In addition, we do not consider an objection for relevance to be well-
`founded. Evidence is relevant if it “has any tendency to make a fact more or
`less probably than it would be without the evidence” and that fact is material
`to determining the case. FRE 401. There is little question that the objected-
`to exhibits, which discuss types of scripting languages and dynamic web
`pages in existence before the filing of the ’804 patent, satisfy this test, and
`24/7 Customer does not seriously argue otherwise. Rather, 24/7 Customer’s
`objection appears to be to the timing of the evidence, and that it is beyond
`the proper scope of reply evidence as permitted by our rules of practice. See
`Mot. 4 (citing 37 C.F.R. § 42.23). But the question of whether evidence
`submitted with a reply is improper because it should have been submitted
`earlier in the proceeding is one of procedure, not admissibility. Motions to
`exclude before the Board are intended to address only the latter. See Liberty
`Mutual Ins. Co. v. Progressive Casualty Ins. Co., CBM2012-00002, Paper
`66 at 61–62 (PTAB Jan 23, 2014) (“a motion to exclude . . . is not a
`mechanism to argue that a reply contains new arguments or relies on
`evidence necessary to make out a prima facie case.”).
`Finally, even if 24/7 Customer had properly raised an objection to the
`scope of LivePerson’s reply evidence, we would not find this argument
`persuasive. As discussed below in footnote 9, Exhibits 1019–1022 were
`submitted on reply in direct response to arguments made by 24/7 Customer
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`in its Patent Owner Response regarding whether web pages are
`“applications” within the scope of the claims.
`
`As a subsidiary objection, 24/7 Customer also objects to Exhibits
`1019–1022 as irrelevant, as they were not cited in the body of the Reply
`itself. Mot. 4. While we have, in prior cases, excluded for relevance
`exhibits that a party submitted as “background” but never cited, those were
`exhibits never cited anywhere in the proceeding. See SK Innovation Co.,
`Ltd. v. Celgard, LLC, IPR2014-00679, Paper 58, at 49 (PTAB Sept. 25,
`2015). Here, by contrast, Mr. Lipoff properly relies on the exhibits as the
`basis for the opinions expressed in his second Declaration. Ex. 1017 ¶ 9.
`We do not consider the exhibits to be irrelevant on this basis.
`Second, 24/7 Customer asks that we exclude Exhibits 1019–1022 as
`hearsay not falling within an exception under FRE 801 and 802. Mot. 6.
`The Motion does not identify specifically what portions of the exhibits, or
`what statements made therein, are out-of-court statements offered for the
`truth of the matter asserted. 24/7 Customer only refers generally to “the
`dates that the documents were available and the purported public availability
`of those documents.” Id. Without more, it is difficult to understand what
`specific statements within the documents speak to either of these issues.
`Furthermore, LivePerson does not rely on statements within the documents
`themselves as evidence of their public availability as of the priority date of
`the ’804 patent. Rather, as 24/7 Customer acknowledges in reply (Mot.
`Reply 5), LivePerson presents the testimony of a librarian via the
`supplemental evidence Declaration of Christopher Lowden (Ex. 1025) as
`evidence of the documents’ public availability dates. Mr. Lowden’s
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`testimony is not hearsay, nor are Exhibits 1019–1022 as LivePerson has
`relied upon them.
`Third, 24/7 Customer objects to Exhibits 1019–1022 for lack of
`authenticity under FRE 901(a), and Exhibit 1024 for lack of personal
`knowledge under FRE 602. Mot. 6–7. A document is sufficiently
`authenticated if the proponent of the document produces evidence sufficient
`to support a finding that the document is what the proponent says it is. FRE
`901(a). Here, there is sufficient evidence to make that finding as to Exhibits
`1019–1022. 24/7 Customer’s objection is based on its view that the “only
`evidence” submitted to authenticate the exhibits is the Declaration of Robert
`Kang (Ex. 1024), who allegedly has no personal knowledge of the
`authenticity of the documents. Mot. 6–7. Even if Mr. Kang’s testimony
`were insufficient, however, 24/7 Customer’s contention misstates the record;
`it ignores the fact that LivePerson also submitted Mr. Lowden’s declaration
`(Ex. 1025), discussed above, as supplemental evidence in response to 24/7
`Customer’s evidentiary objections. We could overrule the objection on this
`basis alone, but also note that, upon reviewing Mr. Lowden’s declaration,8
`he provides testimony sufficient to establish that the exhibits are what
`LivePerson says they are. Ex. 1025 ¶¶ 7–9.
`Because we do not rely on Mr. Kang’s Declaration (Ex. 1024), and
`the testimony is not necessary to determine that the reply exhibits have been
`
`8 24/7 Customer does not address the Lowden Declaration in its Motion to
`Exclude. Its arguments regarding the sufficiency of Mr. Lowden’s
`testimony, made for the first time in the Reply (Mot. Reply 3–4), deprived
`LivePerson of the opportunity to respond and, therefore, will not be
`considered.
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`properly authenticated, we dismiss 24/7 Customer’s objection to the
`testimony as moot.
`Finally, 24/7 Customer moves to exclude paragraph 9 of Exhibit
`1017, the portion of the reply testimony of Mr. Lipoff that relies on Exhibits
`1019–1022. Mot. 7–8. As we have concluded above that the objections to
`the underlying exhibits lack merit, we also deny the motion as to the
`paragraph of the Declaration that relies on these exhibits.
`
`C. Obviousness over Busey and Yoshida
`LivePerson contends that claims 1–3, 5, 8–9, and 16 are unpatentable
`
`under 35 U.S.C. § 103(a), as they would have been obvious over the
`combined disclosures of Busey and Yoshida. Pet. 20–41. As explained
`below, LivePerson has shown by a preponderance of the evidence that the
`claims would have been obvious over the combined references.
`1. Busey
`Busey discloses a system for integrating multiple communication
`types in a call center, such as chat, email, voicemail, telephone, and web
`pages. Ex. 1007 ¶ 12. Figure 3A of Busey shows a screen from the agent’s
`graphical user interface (“GUI”) shown on the agent’s computer screen,
`which comprises various windows and buttons. Among the buttons are a
`“Say” button that the agent may use to send text to the customer, and a
`“Send URL” button that displays a web page located at a selected URL on
`the customer’s screen. Id. ¶ 103. The agent GUI also includes a
`“NetMeeting” button that initiates a NetMeeting session, through which the
`customer and agent can share screens and pointers. Id. ¶ 98.
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`
`Busey also discloses an additional screen from the agent interface,
`called the “pager” display, which allows agents to send messages to each
`other and receive messages from other agents. Id. ¶ 107. The pager display
`also includes a “NetMeeting” button to initiate a NetMeeting session, as well
`as a button to permit supervisors to enable an “invisible mode.” Id.
`According to Busey, in “invisible mode,” “[a]ll functions work identically,
`except that the participants in the room don’t see any indication that the
`supervisor is entering or leaving the room.” Id.
`2. Yoshida
`Yoshida describes a system for permitting call center agents to
`monitor potential customers who are visiting a website and, if appropriate,
`initiate communication with the potential customers. Ex. 1008, 1:66–2:3.
`The system uses a “customer monitoring applet” that is downloaded to a
`customer’s computer upon visiting a web page, which once installed
`monitors various aspects of the customer’s web browsing behavior. Id. at
`8:6–25. This information is stored in a database, and subsequently
`forwarded to a customer service agent if it is determined that the agent
`should “proactively provide assistance” to the customer. Id. at 16:27–47.
`The agent reviews the customer information, decides whether to offer
`assistance to the customer, and uses collaborative communication software
`to initiate contact with the customer. Id. at 17:5–18. As an example,
`Yoshida states that the customer and agent may “simultaneously conduct
`text chat . . . as well as browse collaboratively through the exchange of the
`appropriate web page addresses and text.” Id. at 17:33–37.
`
`
`
`17
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`IPR2017-00610
`Patent 9,077,804 B2
`
`
`3. Analysis
`We find that a person of ordinary skill in the art would have combined
`Busey and Yoshida in the manner proposed by LivePerson. Specifically,
`LivePerson contends that a person of ordinary skill in the art would have had
`reason to apply the disclosures of Yoshida—specifically, Yoshida’s
`customer monitoring applet—to the system of Busey, in order to improve
`Busey’s system. Pet. 23–24. According to LivePerson, a person of ordinary
`skill would have understood that “Busey’s goal of improving customer-agent
`interactions using computer-related technology would be furthered by
`adding the customer monitoring applet of Yoshida.” Pet. Reply 27. In other
`words, given Busey’s stated goal of improving tracking of customer issues,
`the skilled artisan would have looked to Yoshida’s monitoring applet as a
`method of further improving this tracking. Id.
`24/7 Customer argues that there is no motivation to combine the
`references in the manner proposed. PO Resp. 44–45. 24/7 Customer first
`argues that the references address different portions of the customer
`interaction process, with Yoshida being focused on monitoring a customer
`before interaction with an agent, while Busey teaches sending a URL to a
`customer after the agent interacts with the customer. Id. at 44. According to
`24/7 Customer, “[t]here is no teaching or suggestion that the pre-agent
`involvement aspects of Yoshida could be used to alter or improve the post-
`agent involvement aspects of Busey.” Id.
`As LivePerson notes in response—and we agree—the timing of
`Yoshida’s customer monitoring applet does not lead to the conclusion that a
`person of ordinary skill in the art would not have incorporated the applet into
`
`
`
`18
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`
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`IPR2017-00610
`Patent 9,077,804 B2
`
`Busey. First, LivePerson argues that the skilled artisan would have
`recognized that the Yoshida applet could be used during a customer-agent
`interaction to record customer behavior. Pet. Reply 27. Second, even if the
`references focus on improving different aspects of the customer-agent
`interaction, this is not a reason not to combine their teachings. A system that
`combined Yoshida’s pre-agent monitoring with Busey’s during-interaction
`monitoring would improve both aspects of the customer service experience,
`leading to an overall improved system. See Ex. 1005 ¶ 84 (“It would
`specifically be a natural extension of the system disclosed in Busey to
`provide further customer monitoring capabilities in order to provide
`additional information about a current customer to an agent.”). We find that
`a person of ordinary skill in the art would have had reason to combine the
`features of the references, as LivePerson proposes.
`a. Independent Claims 1 and 16
`As discussed above, independent claims 1 and 16 recite parallel
`limitations, with claim 16 being a method claim counterpart to the apparatus
`of claim 1. We, therefore, address the two claims together, and make the
`following findings of fact.
`We find that Busey discloses an “interaction engine” that is
`“configured for accessibility by at least one customer and at least one agent
`for interaction during a session.” Busey teaches a Communications Interface
`Unit (CIU) that manages interactions between customers and agents.
`Ex. 1007 ¶¶ 55–56. Furthermore, we find that Busey discloses that the
`“interaction engine” permits communication “via any of chat, voice, and a
`combination of chat and voice,” namely that the CIU “provides real-time
`
`
`
`19
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`IPR2017-00610
`Patent 9,077,804 B2
`
`text discussion, or chat, with multimedia extensions allowing agents and
`customers to interact immediately to solve a particular problem.” Id. ¶ 56.
`We adopt LivePerson’s analysis of this claim element, which 24/7 Customer
`does not contest. See Pet. 26–27.
`We also find that Busey discloses that its system is “configured to
`send a link to said customer at said agent’s request.” Busey discloses that
`the agent may send a URL, which is a link to a webpage, to the customer
`using its “Say URL” function. Ex. 1007 ¶ 17 (“HTML can be included with
`chat-text so that, for example, a URL can be provided that can be clicked on
`to take a customer to a specific website”), ¶ 103.
`24/7 Customer does not contest this aspect of the claim limitation, but
`contends that the links sent by Busey fail to satisfy the next portion of the
`claim—namely, that the links “allow said customer to access an application
`at a processor implemented application server on which said application is
`resident.” PO Resp. 26–39. According to 24/7 Customer, the links in Busey
`on
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