Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper: 10
`Entered: July 12, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`LIVEPERSON, INC.,
`Petitioner,
`
`v.
`
`24/7 CUSTOMER, INC.,
`Patent Owner.
`_______________
`
`Case IPR2017-00612
`Patent 7,751,552 B2
`_______________
`
`
`Before CHRISTOPHER L. CRUMBLEY, ROBERT J. WEINSCHENK,
`and GARTH D. BAER, Administrative Patent Judges.
`
`WEINSCHENK, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`571-272-7822
`
`
`
`
`Paper: 10
`Entered: July 12, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`LIVEPERSON, INC.,
`Petitioner,
`
`v.
`
`24/7 CUSTOMER, INC.,
`Patent Owner.
`_______________
`
`Case IPR2017-00612
`Patent 7,751,552 B2
`_______________
`
`
`Before CHRISTOPHER L. CRUMBLEY, ROBERT J. WEINSCHENK,
`and GARTH D. BAER, Administrative Patent Judges.
`
`WEINSCHENK, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`IPR2017-00612
`Patent 7,751,552 B2
`
`
`INTRODUCTION
`I.
`LivePerson, Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”)
`requesting an inter partes review of claims 1, 2, 4, 6, 7, 9–11, and 15–21 of
`U.S. Patent No. 7,751,552 B2 (Ex. 1001, “the ’552 patent”). 24/7 Customer,
`Inc. (“Patent Owner”) filed a Preliminary Response (Paper 7, “Prelim.
`Resp.”) to the Petition. An inter partes review may not be instituted “unless
`. . . there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.” 35 U.S.C.
`§ 314(a).
`For the reasons set forth below, Petitioner does not demonstrate a
`reasonable likelihood of prevailing in showing the unpatentability of claims
`1, 2, 4, 6, 7, 9–11, and 15–21 of the ’552 patent. Accordingly, the Petition is
`denied, and no trial is instituted.
`Related Proceedings
`A.
`The parties indicate that the ’552 patent is asserted in 24/7 Customer,
`Inc. v. LivePerson, Inc., No. 3:15-cv-05585 (N.D. Cal.), which was
`consolidated with 24/7 Customer, Inc. v. LivePerson, Inc., No. 3:15-cv-
`02897 (N.D. Cal.). Pet. 2–3; Paper 5, 2. The parties also indicate that the
`following petitions for inter partes review are related to this case:
`Case No.
`Involved U.S. Patent No.
`IPR2017-00609
`U.S. Patent No. 6,970,553
`IPR2017-00610
`U.S. Patent No. 9,077,084
`IPR2017-00613
`U.S. Patent No. 7,027,586
`IPR2017-00614
`U.S. Patent No. 6,975,719
`IPR2017-00615
`U.S. Patent No. 7,245,715
`IPR2017-00616
`U.S. Patent No. 6,798,876
`Pet. 2–3; Paper 5, 2.
`
`2
`
`
`
`IPR2017-00612
`Patent 7,751,552 B2
`
`
`The ’552 Patent
`B.
`The ’552 patent relates to routing communications from customers to
`agents of a service center. Ex. 1001, col. 1, ll. 27–28. The ’552 patent
`explains that a customer may contact a service center using a variety of
`different communication modalities, such as a conventional telephone, an
`email message, or an instant message. Id. at col. 1, ll. 30–39, col. 3, ll. 1–7.
`In order to match a customer with an agent, a model is created for a
`customer based on information about that customer, such as the customer’s
`history of communications with the service center. Id. at col. 8, ll. 18–24.
`In addition, multiple models are created for each agent of the service center.
`Id. at col. 8, l. 66–col. 9, l. 4. Each model for an agent reflects that agent’s
`ability to receive and process requests using a different type of
`communication modality. Id. When a customer submits a request to the
`service center, one model is selected for each agent according to the type of
`communication modality used by the customer. Id. at col. 9, ll. 8–11. The
`customer model then is compared to the selected agent models in order to
`match the customer with the agent that is best suited to handle the
`customer’s request. Id. at col. 9, ll. 16–47.
`Illustrative Claim
`C.
`Claims 1, 9, and 15 are independent. Claim 1 is reproduced below.
`1. A method for routing communications to an agent,
`comprising:
`selecting one of a plurality of agent models for each of a
`plurality of agents, based upon an identified modality of
`an incoming communication from a requester;
`determining an agent corresponding to one of the selected
`agent models best matched to information associated with
`
`
`
`3
`
`
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`IPR2017-00612
`Patent 7,751,552 B2
`
`
`to
`
`the
`
`incoming
`
`Ex. 1008
`
`Ex. 1009
`
`Ex. 1014
`
`corresponding
`requester
`the
`communication; and
`establishing a communication connection between the
`requester and the best matched agent.
`Ex. 1001, col. 13, ll. 36–46.
`Evidence of Record
`D.
`Petitioner submits the following references and declaration (Pet. 4–5):
`Reference or Declaration
`Exhibit No.
`Declaration of Stuart J. Lipoff (“Lipoff Declaration”)
`Ex. 1005
`Bushey et al., U.S. Patent No. 6,389,400 B1 (issued May
`Ex. 1007
`14, 2002) (“Bushey”)
`Mears et al., U.S. Patent No. 7,092,509 B1 (issued Aug. 15,
`2006) (“Mears”)
`McCord et al., U.S. Patent No. 7,792,773 B2 (issued Sept.
`7, 2010) (“McCord”)
`Baker et al., U.S. Patent No. 8,416,943 B2 (issued Apr. 9,
`2013) (“Baker”)
`Patent Owner submits the Declaration of Arthur T. Brody, Ph.D. (Ex.
`
`2001, “Brody Declaration”).
`Asserted Grounds of Unpatentability
`E.
`Petitioner asserts that the challenged claims are unpatentable on the
`following grounds (Pet. 4–5):
`Reference(s)
`Claims
`Basis
`1, 2, 4, 6, 7, 9–11, and
`35 U.S.C. § 103(a) McCord
`15–21
`1, 2, 4, 6, 7, 9, 10, and
`15–21
`1, 2, 4, 6, 7, 9–11, and
`15–21
`1, 2, 4, 6, 7, 9, 10, and
`15–21
`
`35 U.S.C. § 103(a) Mears, Bushey, and Baker
`
`35 U.S.C. § 103(a) Mears and Bushey
`
`35 U.S.C. § 103(a) McCord and Baker
`
`4
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`IPR2017-00612
`Patent 7,751,552 B2
`
`
`II. ANALYSIS
`A. Claim Construction
`The claims of an unexpired patent are interpreted using the broadest
`reasonable interpretation in light of the specification of the patent in which
`they appear. 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136
`S. Ct. 2131, 2144–45 (2016). Neither party proposes construing any claim
`terms at this stage of the proceeding. On this record and for purposes of this
`decision, we determine that no claim terms require express construction to
`resolve the parties’ disputes regarding the asserted grounds of
`unpatentability in this case. See infra Section II.B; 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.”).
`Asserted Grounds of Unpatentability
`B.
`Obviousness of Claims 1, 2, 4, 6, 7, 9–11, and 15–21
`1.
`over McCord
`Petitioner argues that claims 1, 2, 4, 6, 7, 9–11, and 15–21 would have
`been obvious over McCord. Pet. 4. We have reviewed the parties’
`assertions and supporting evidence. For the reasons discussed below,
`Petitioner does not demonstrate a reasonable likelihood of prevailing in
`showing that claims 1, 2, 4, 6, 7, 9–11, and 15–21 would have been obvious
`over McCord.
`
`Claims 1, 9, and 15
`a.
`Claim 1 recites “selecting one of a plurality of agent models for each
`of a plurality of agents, based upon an identified modality of an incoming
`communication from a requester.” Ex. 1001, col. 13, ll. 38–40 (emphasis
`added). Claims 9 and 15 include a similar limitation. Id. at col. 13, l. 64–
`
`5
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`
`
`IPR2017-00612
`Patent 7,751,552 B2
`
`col. 14, l. 2, col. 14, ll. 27–30. With respect to this limitation, Petitioner
`argues that “McCord discloses identifying the modality or media type . . . of
`the request” and “selecting the agent for routing based on the identified
`modality.” Pet. 23 (citing Ex. 1009, col. 11, ll. 10–16, col. 16, ll. 26–41, col.
`17, l. 18–col. 20, l. 40, col. 29, ll. 6–21, Figs. 1–3) (emphasis added). Even
`if Petitioner is correct that McCord teaches selecting an agent based on the
`identified modality, the above limitation of claims 1, 9, and 15 does not
`recite selecting an agent based on the identified modality. Ex. 1001, col. 13,
`ll. 38–40, col. 13, l. 64–col. 14, l. 2, col. 14, ll. 27–30. Rather, claims 1, 9,
`and 15 recite selecting one of a plurality of agent models for each of a
`plurality of agents based on the identified modality. Id.
`Petitioner does not explain specifically how McCord teaches selecting
`one of a plurality of agent models for each of a plurality of agents based on
`the identified modality. Pet. 23, 27–28; Prelim. Resp. 20–21. Petitioner
`directs us to portions of McCord that teach a skills presence model for an
`agent. Pet. 27–28 (citing Ex. 1009, col. 34, l. 16–col. 36, l. 2, Fig. 10). The
`cited portions of McCord, however, teach providing one skills presence
`model for each agent (or combination of agents), not a plurality of agent
`models for each agent, as required by claims 1, 9, and 15.1 Pet. 19 (“agents
`are represented by a ‘skills presence model’”); Prelim. Resp. 20–21; Ex.
`1009, col. 34, ll. 16–21, Fig. 10.
`
`
`1 A different panel of the Board reversed an Examiner’s rejection of the
`claims in U.S. Patent Application No. 11/311,140, which issued as the ’552
`patent, for a similar reason. Ex. 1002, 254–255. The panel explained that
`“the Golitsin system only comprises one agent model for each agent and not
`multiple agent models based upon the modality of the incoming
`communication.” Id. at 255.
`
`6
`
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`IPR2017-00612
`Patent 7,751,552 B2
`
`
`Petitioner also contends that “[t]o the extent Patent Owner argues the
`claims require that selection be based first on modality before matching
`based on other criteria, a person having skill in the art would understand
`McCord as disclosing this,” or, alternatively, that doing so “would be a
`typical practice.” Pet. 23–25 (citing Ex. 1005 ¶¶ 105–109; Ex. 1009, col. 18,
`ll. 46–57, col. 19, l. 57–col. 20, l. 14, col. 21, ll. 5–27, Figs. 1–3). Again,
`even if Petitioner is correct that it would have been obvious to select an
`agent based on the identified modality first and then based on other criteria,
`Petitioner has not met its burden. Petitioner does not explain specifically
`why it would have been obvious to select one of a plurality of agent models
`for each of a plurality of agents based on the identified modality, as required
`by claims 1, 9, and 15. Pet. 23–25; Prelim. Resp. 22–23.
`Claims 2, 4, 6, 7, 10, 11, and 16–21
`b.
`Claims 2, 4, 6, 7, 10, 11, and 16–21 depend, directly or indirectly,
`from claim 1, 9, or 15. Petitioner’s arguments and evidence relating to
`claims 2, 4, 6, 7, 10, 11, and 16–21 do not compensate for the deficiency
`discussed above with respect to claims 1, 9, and 15. Pet. 31–35; see supra
`Section II.B.1.a.
`
`Summary
`c.
`For the foregoing reasons, Petitioner does not demonstrate a
`reasonable likelihood of prevailing in showing that claims 1, 2, 4, 6, 7, 9–11,
`and 15–21 would have been obvious over McCord.
`Obviousness of Claims 1, 2, 4, 6, 7, 9, 10, and 15–21
`2.
`over Mears and Bushey
`Petitioner argues that claims 1, 2, 4, 6, 7, 9, 10, and 15–21 would have
`been obvious over Mears and Bushey. Pet. 4. We have reviewed the
`parties’ assertions and supporting evidence. For the reasons discussed
`
`7
`
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`
`IPR2017-00612
`Patent 7,751,552 B2
`
`below, Petitioner does not demonstrate a reasonable likelihood of prevailing
`in showing that claims 1, 2, 4, 6, 7, 9, 10, and 15–21 would have been
`obvious over Mears and Bushey.
`Claims 1, 9, and 15
`a.
`As discussed above, claim 1 recites “selecting one of a plurality of
`agent models for each of a plurality of agents, based upon an identified
`modality of an incoming communication from a requester” (Ex. 1001, col.
`13, ll. 38–40 (emphasis added)), and claims 9 and 15 include a similar
`limitation (id. at col. 13, l. 64–col. 14, l. 2, col. 14, ll. 27–30). With respect
`to this limitation, Petitioner argues that “Mears discloses identifying the
`modality of a request and associating the request with ‘media skills’ based
`on the media type of the request.” Pet. 45 (citing Ex. 1008, Abstract, col. 3,
`ll. 11–30, col. 10, l. 6–col. 11, l. 35, col. 47, ll. 36–47, Tables 1, 2).
`Petitioner further argues that “[a]gents are also associated with ‘media skills’
`in order to enable the routing manager to select agents capable of responding
`to the request.” Pet. 45 (citing Ex. 1008, col. 14, l. 36–col. 15, l. 20, col. 41,
`ll. 35–56) (emphasis added). Even if Petitioner is correct that Mears teaches
`selecting an agent based on the identified modality, the above limitation of
`claims 1, 9, and 15 does not recite selecting an agent based on the identified
`modality. Ex. 1001, col. 13, ll. 38–40, col. 13, l. 64–col. 14, l. 2, col. 14, ll.
`27–30. Rather, claims 1, 9, and 15 recite selecting one of a plurality of
`agent models for each of a plurality of agents based on the identified
`modality. Id.
`Petitioner does not explain specifically how Mears teaches selecting
`one of a plurality of agent models for each of a plurality of agents based on
`the identified modality. Pet. 45, 50–51; Prelim. Resp. 31–35. Petitioner
`
`8
`
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`
`IPR2017-00612
`Patent 7,751,552 B2
`
`directs us to portions of Mears that teach an agent profile with a media skills
`assignment. Pet. 50–51 (citing Ex. 1008, col. 12, l. 18–col. 15, l. 26, col. 41,
`ll. 35–56, Tables 1, 2, Figs. 5, 8). The cited portions of Mears, however,
`teach providing one agent profile for each agent, not a plurality of agent
`models for each agent, as required by claims 1, 9, and 15. Pet. 37 (“An
`agent can add ‘media skills’ and, separately, other ‘agent skills’ to his/her
`profile.”); Prelim. Resp. 31–34; Ex. 1008, col. 12, l. 18–col. 15, l. 26.
`Petitioner also contends that “[t]o the extent Patent Owner argues the
`claims require that selection be based first on modality before matching
`based on other criteria, a person having skill in the art would understand
`Mears as disclosing this,” or, alternatively, that doing so “would be a typical
`practice.” Pet. 46–47 (citing Ex. 1005 ¶¶ 146–151; Ex. 1008, col. 33, l. 13–
`col. 34, l. 61, col. 47, ll. 21–35, col. 47, ll. 48–55, Table 26, Fig. 68). Again,
`even if Petitioner is correct that it would have been obvious to select an
`agent based on the identified modality first and then based on other criteria,
`Petitioner has not met its burden. Petitioner does not explain specifically
`why it would have been obvious to select one of a plurality of agent models
`for each of a plurality of agents based on the identified modality, as required
`by claims 1, 9, and 15. Pet. 46–47; Prelim. Resp. 35–36.
`Petitioner also directs us to portions of Bushey that teach an agent
`model for an agent. Pet. 51 (citing Ex. 1007, Abstract, col. 6, l. 53–col. 7, l.
`67, col. 9, ll. 36–49). Petitioner, however, does not explain specifically how
`Bushey teaches selecting one of a plurality of agent models for each of a
`plurality of agents based on the identified modality. Pet. 51; Prelim. Resp.
`34. The cited portions of Bushey teach providing one agent model for each
`agent, not a plurality of agent models for each agent, as required by claims 1,
`
`9
`
`
`
`IPR2017-00612
`Patent 7,751,552 B2
`
`9, and 15. Prelim. Resp. 34; Ex. 1007, col. 7, ll. 61–63 (“all agents are
`associated with an agent model”), col. 10, ll. 18–21 (“the agent model
`associated with the agent”).
`Claims 2, 4, 6, 7, 10, and 16–21
`b.
`Claims 2, 4, 6, 7, 10, and 16–21 depend, directly or indirectly, from
`claim 1, 9, or 15. Petitioner’s arguments and evidence relating to claims 2,
`4, 6, 7, 10, and 16–21 do not compensate for the deficiency discussed above
`with respect to claims 1, 9, and 15. Pet. 55–62; see supra Section II.B.2.a.
`Summary
`c.
`For the foregoing reasons, Petitioner does not demonstrate a
`reasonable likelihood of prevailing in showing that claims 1, 2, 4, 6, 7, 9, 10,
`and 15–21 would have been obvious over Mears and Bushey.
`Obviousness of Claims 1, 2, 4, 6, 7, 9–11, and 15–21
`3.
`over McCord and Baker
`Petitioner argues that claims 1, 2, 4, 6, 7, 9–11, and 15–21 would have
`been obvious over McCord and Baker. Pet. 5. We have reviewed the
`parties’ assertions and supporting evidence. For the reasons discussed
`below, Petitioner does not demonstrate a reasonable likelihood of prevailing
`in showing that claims 1, 2, 4, 6, 7, 9–11, and 15–21 would have been
`obvious over McCord and Baker.
`Petitioner contends that “to the extent Patent Owner argues the
`independent claims 1, 9 and 15 . . . require that selection be based first on
`modality before matching based on other criteria, . . . it would have been
`obvious to combine McCord with Baker so that McCord’s system performs
`the selection in the claimed sequence.” Pet. 62. In particular, Petitioner
`contends that “Baker, like McCord and the ’552 Patent, describes selecting
`an agent for a customer contact based first on the media type and
`
`10
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`IPR2017-00612
`Patent 7,751,552 B2
`
`subsequently based on a ‘threshold value.’” Id. at 63 (citing Ex. 1014,
`Abstract, col. 2, ll. 51–54, col. 3, ll. 4–20, col. 5, l. 16–col. 6, l. 57, Fig. 2)
`(emphasis added). Even if Petitioner is correct that Baker teaches selecting
`an agent based on the identified modality first and then based on other
`criteria, Petitioner has not met its burden. Petitioner does not explain
`specifically how Baker teaches selecting one of a plurality of agent models
`for each of a plurality of agents based on the identified modality, as required
`by claims 1, 9, and 15. Pet. 62–64; Prelim. Resp. 38–39. For example,
`Petitioner does not identify what in Baker corresponds to the claimed
`plurality of agent models for each of a plurality of agents. Pet. 62–64. Thus,
`Petitioner has not shown sufficiently that Baker compensates for the
`deficiency discussed above regarding McCord. See supra Section II.B.1.
`For the foregoing reasons, Petitioner does not demonstrate a
`reasonable likelihood of prevailing in showing that claims 1, 2, 4, 6, 7, 9–11,
`and 15–21 would have been obvious over McCord and Baker.
`Obviousness of Claims 1, 2, 4, 6, 7, 9, 10, and 15–21
`4.
`over Mears, Bushey, and Baker
`Petitioner argues that claims 1, 2, 4, 6, 7, 9, 10, and 15–21 would have
`been obvious over Mears, Bushey, and Baker. Pet. 5. We have reviewed the
`parties’ assertions and supporting evidence. For the reasons discussed
`below, Petitioner does not demonstrate a reasonable likelihood of prevailing
`in showing that claims 1, 2, 4, 6, 7, 9, 10, and 15–21 would have been
`obvious over Mears, Bushey, and Baker.
`Petitioner contends that “to the extent Patent Owner argues the
`independent claims 1, 9 and 15 . . . require that selection be based first on
`modality before matching based on other criteria, . . . it would have been
`obvious to combine Baker with Mears so that Mears’s system performs the
`
`11
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`IPR2017-00612
`Patent 7,751,552 B2
`
`selection in the claimed sequence.” Pet. 65. Petitioner relies on the same
`teachings in Baker discussed above with respect to the proposed
`combination of McCord and Baker. Id. (“See above disclosures of Baker in
`Ground 3.”). As discussed previously, even if Petitioner is correct that
`Baker teaches selecting an agent based on the identified modality first and
`then based on other criteria, Petitioner has not met its burden. Petitioner
`does not explain specifically how Baker teaches selecting one of a plurality
`of agent models for each of a plurality of agents based on the identified
`modality, as required by claims 1, 9, and 15. Pet. 62–65; Prelim. Resp. 39–
`40. Thus, Petitioner has not shown sufficiently that Baker compensates for
`the deficiency discussed above regarding Mears and Bushey. See supra
`Section II.B.2.
`For the foregoing reasons, Petitioner does not demonstrate a
`reasonable likelihood of prevailing in showing that claims 1, 2, 4, 6, 7, 9, 10,
`and 15–21 would have been obvious over Mears, Bushey, and Baker.
`III. CONCLUSION
`Petitioner does not demonstrate a reasonable likelihood of prevailing
`in showing the unpatentability of claims 1, 2, 4, 6, 7, 9–11, and 15–21 of the
`’552 patent.
`
`IV. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that the Petition is denied, and no trial is instituted.
`
`
`
`12
`
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`
`IPR2017-00612
`Patent 7,751,552 B2
`
`PETITIONER:
`
`Kristen Reichenbach
`Robert Kang
`Eugene Goryunov
`KIRKLAND & ELLIS LLP
`kristen.reichenbach@kirkland.com
`robert.kang@kirkland.com
`eugene.goryunov@kirkland.com
`
`
`PATENT OWNER:
`
`Mark E. Miller
`Brian M. Cook
`Jay Choi
`O’MELVENY & MEYERS LLP
`markmiller@omm.com
`bcook@omm.com
`jchoi@omm.com
`
`13
`
`
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