Trials@uspto.gov
`571-272-7822
`
`Paper 38
`Date: June 16, 2021
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`CALLMINER, INC.,
`Petitioner,
`v.
`MATTERSIGHT CORPORATION,
`Patent Owner.
`____________
`
`IPR2020-00270
`Patent 8,611,523 B2
`____________
`
`
`
`Before KEVIN F. TURNER, SHEILA F. McSHANE, and
`STEPHEN E. BELISLE, Administrative Patent Judges.
`BELISLE, Administrative Patent Judge.
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`571-272-7822
`
`Paper 38
`Date: June 16, 2021
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`CALLMINER, INC.,
`Petitioner,
`v.
`MATTERSIGHT CORPORATION,
`Patent Owner.
`____________
`
`IPR2020-00270
`Patent 8,611,523 B2
`____________
`
`
`
`Before KEVIN F. TURNER, SHEILA F. McSHANE, and
`STEPHEN E. BELISLE, Administrative Patent Judges.
`BELISLE, Administrative Patent Judge.
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`
`IPR2020-00270
`Patent 8,611,523 B2
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`
`I.
`
`INTRODUCTION
`
`A. Case Posture
`CallMiner, Inc. (“Petitioner”) filed a Petition (Paper 2, “Pet.”) to
`institute an inter partes review of claims 8, 9, 13–16, and 20 (“the
`challenged claims”) of U.S. Patent No. 8,611,523 B2 (Ex. 1001, “the
`’523 patent”). Mattersight Corporation (“Patent Owner”) filed a Preliminary
`Response to the Petition (Paper 8, “Prelim. Resp.”; see Paper 5).
`We instituted an inter partes review of claims 8, 9, 13–16, and 20 of the
`’523 patent on all grounds of unpatentability alleged in the Petition. Paper 9
`(“Institution Decision” or “Dec.”).
`After institution, Patent Owner filed a Response. Paper 18
`(“PO Resp.”). Petitioner filed a Reply. Paper 22 (“Pet. Reply”). Patent
`Owner filed a Sur-Reply. Paper 27 (“PO Sur-Reply”). We held a hearing
`on March 18, 2021, and a transcript of the hearing appears in the record.
`Paper 37 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. Under the applicable
`evidentiary standard, Petitioner has the burden to prove unpatentability by a
`preponderance of the evidence. See 35 U.S.C. § 316(e) (2018); 37 C.F.R.
`§ 42.1(d) (2019). This Final Written Decision is issued pursuant to
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons discussed below, we determine Petitioner has
`established by a preponderance of the evidence that claims 8, 9, 13–16,
`and 20 of the ’523 patent are unpatentable.
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`B. Related Matters
`The parties identify the following active matter as related to the
`’523 patent (Pet. 1; Paper 5, 1): NICE Ltd. v. CallMiner, Inc., Case No. 18-
`cv-02024 (D. Del.).
`Petitioner also filed a Petition challenging claims 1, 2, 6, and 7 of the
`’523 patent in Case IPR2020-00271 and filed an Explanation for Filing
`Multiple Petitions in this proceeding (Paper 3). We denied the Petition in
`Case IPR2020-00271 (Paper 14). Petitioner filed petitions challenging other
`patents owned by Patent Owner in Cases IPR2020-00220 and
`IPR2020-00272.
`
`C. The ’523 Patent
`The ’523 patent is titled “Methods and Systems For Determining
`Segments of a Telephonic Communication Between a Customer and a
`Contact Center to Classify Each Segment of the Communication, Assess
`Negotiations, and Automate Setup Time Calculation,” and issued on
`December 17, 2013, from U.S. Application No. 12/286,168, filed
`September 29, 2008. Ex. 1001, codes (10), (21), (22), (45), (54).
`The ’523 patent relates to methods and systems for analyzing a
`telephonic communication between a customer and a call center agent.
`Ex. 1001, code (57). Telephone call centers “facilitate the receipt, response
`and routing of incoming telephone calls relating to customer service,
`retention, and sales.” Id. at 1:28–30. The ’523 patent states that monitoring
`calls by having individuals listen to calls between customers and agents was
`known in the art, but such methods were “inconsistent and subjective” in
`“monitoring, training and evaluating call center agents.” Id. at 1:50–62.
`According to the ’523 patent, there was a need for “tools useful for breaking
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`down a communication between [a customer] and a [customer service
`representative (CSR)] into objects and segments that may be classified into
`categories for analysis.” Id. at 2:4–7.
`The ’523 patent describes separating a telephonic communication into
`first and second “constituent voice data” as determined by, for example, the
`source and destination address of individual data packets. Ex. 1001, 8:41–
`44, 14:19–24, 51–58, Figs. 4, 7–9. “[O]nce the first and second constituent
`voice data are separated one from the other, each . . . can be independently
`mined and analyzed.” Id. at 15:39–42. Figure 10 of the ’523 patent is
`reproduced below.
`
`
`
`Figure 10 is a block diagram illustrating customer
`and CSR communications object identification.
`Ex. 1001, 4:42–44.
`Figure 10 depicts how a “stereo call recording with voice data for a
`customer and a CSR” is analyzed. Ex. 1001, 16:6–7. In an exemplary
`embodiment, voice data are converted into text, communication objects
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`within the text are identified, and the communication objects are classified
`into predefined categories (e.g., “setup, information exchange,
`miscommunication, non-interaction, conversation, or positive comment”) by
`searching for and identifying “text-based keywords” for the categories. Id.
`at 15:63–16:11. “The typed communication objects may then be further
`categorized to form segments of objects according to type.” Id. at 16:3–5,
`28–32. Alternatively, the ’523 patent also discloses “it is contemplated by
`the present invention that mining and analysis in accordance with the present
`invention can be applied directly to voice data configured in audio format,”
`rather than first translating that voice data into a text file. Id. at 15:52–57.
`Figure 12 of the ’523 patent is reproduced below.
`
`Figure 12 is a block diagram illustrating
`classification of communication objects.
`Ex. 1001, 4:50–52.
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`Figure 12 depicts “the words of the CSR and customer as
`communication objects, as well as CTI (Computer Telephony Integration)
`events (e.g., a ‘hold’ event).” Ex. 1001, 16:18–20. As shown in Figure 12,
`communication objects are classified as business-related, business-related
`but non-interaction due to placing the customer on hold, and
`non-business-related, and segments are classified as call setup,
`non-interaction, and conversation. Id. at 16:18–32. Classification of
`communication objects and segments may be performed by applying
`“[w]ord libraries” for the predefined categories to the text of the
`communication. Id. at 16:66–17:5, Fig. 15. “Non-interaction type
`classifications may be based on CTI events.” Id. at 17:5–6. The ’523 patent
`describes further analysis of the voice data to, for example, determine
`percentages of time spent on certain portions of the communication or
`identify negotiations and the strength of negotiations between the customer
`and CSR. Id. at 17:23–18:8.
`
`Illustrative Claim
`D.
`Challenged claims 8 and 15 of the ’523 patent are independent.
`Claim 8 is illustrative and reproduced below.
`8. A method for analyzing a telephonic communication
`between one or more customers and a contact center having one
`or more agents, the method comprising the steps of:
`recording, with a processor, onto a non-transitory
`computer readable medium a
`telephonic communication
`between a customer and an agent;
`processing said telephonic communication into a plurality
`of computer telephony interpretation event[s];
`analyzing
`said plurality of
`computer
`interpretation event[s]; and
`
`telephony
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`telephony
`said plurality of computer
`classifying
`interpretation event[s] into types a first type and a second,
`different type.
`
`Ex. 1001, 20:24–36.
`
`E. Applied References
`Petitioner relies upon the following references:
`Konig et al., U.S. Patent No. 7,487,094 B1, filed June 18,
`2004, issued February 3, 2009 (Ex. 1003, “Konig”);
`Watson et al., U.S. Patent Application Publication
`No. 2008/0004945 A1, filed June 30, 2006, published
`January 3, 2008 (Ex. 1002, “Watson”); and
`Paz et al., U.S. Patent Application Publication
`No. 2006/0179064 A1, filed February 7, 2006, published
`August 10, 2006 (Ex. 1014, “Paz”).
`
`F. Asserted Grounds of Unpatentability
`We instituted inter partes review of claims 8, 9, 13–16, and 20 of the
`’523 patent on the following grounds asserted by Petitioner. Dec. 2, 6, 27;
`Pet. 4.
`Claim(s) Challenged
`8, 9, 14–16, 20
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`Reference(s)/Basis
`Watson, Konig
`Watson, Konig, Paz
`
`35 U.S.C. §
`103(a)1
`103(a)
`
`Petitioner relies on the Declaration of Richard Stern, Ph.D. Ex. 1013.
`Patent Owner relies on the Declaration of Ivan Zatkovich. Ex. 2006.
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29,
`125 Stat. 284 (2011), amended 35 U.S.C. § 103. Because the challenged
`claims of the ’523 patent have an effective filing date before March 16,
`2013, the effective date of the relevant amendment, the pre-AIA version of
`§ 103 applies.
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`II. ANALYSIS
`
`A. Applicable Law
`Petitioner challenges the patentability of claims 8, 9, 13–16, and 20 of
`the ’523 patent on the grounds that the claims are obvious under 35 U.S.C.
`§ 103 in light of various references including: Watson, Konig, Paz.
`To prevail in its challenges to the patentability of the claims, Petitioner must
`establish unpatentability by a preponderance of the evidence. 35 U.S.C.
`§ 316(e); 37 C.F.R. § 42.1(d). “In an [inter partes review], the petitioner has
`the burden from the onset to show with particularity why the patent it
`challenges is unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d
`1356, 1363 (Fed. Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (2012) (requiring
`inter partes review petitions to identify “with particularity . . . the evidence
`that supports the grounds for the challenge to each claim”)). This burden
`never shifts to Patent Owner. See Dynamic Drinkware, LLC v. Nat’l
`Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir. 2015) (citing Tech. Licensing
`Corp. v. Videotek, Inc., 545 F.3d 1316, 1326–27 (Fed. Cir. 2008))
`(discussing the burden of proof in inter partes review).
`A claim is unpatentable under 35 U.S.C. § 103 if “the differences
`between the subject matter sought to be patented and the prior art are such
`that the subject matter as a whole would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations, including (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of skill in the art; and (4) when of record, objective evidence of
`non-obviousness, i.e., secondary considerations. Graham v. John Deere Co.,
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`383 U.S. 1, 17–18 (1966). Secondary considerations may include the
`following: “commercial success, long felt but unsolved needs, failure of
`others, etc.”2 Id. The totality of the evidence submitted may show that the
`challenged claims would not have been obvious to one of ordinary skill in
`the art. In re Piasecki, 745 F.2d 1468, 1471–72 (Fed. Cir. 1984). When
`evaluating a combination of teachings, we must also “determine whether
`there was an apparent reason to combine the known elements in the fashion
`claimed by the patent at issue.” KSR, 550 U.S. at 418 (citing In re Kahn,
`441 F.3d 977, 988 (Fed. Cir. 2006)).
`The Supreme Court has made clear that we apply “an expansive and
`flexible approach” to the question of obviousness. Id. at 415. Whether a
`patent claiming a combination of prior art elements would have been
`obvious is determined by whether the improvement is more than the
`predictable use of prior art elements according to their established functions.
`Id. at 417. To reach this conclusion, however, requires more than a mere
`showing that the prior art includes separate references covering each
`separate limitation in a claim under examination. Unigene Labs., Inc. v.
`Apotex, Inc., 655 F.3d 1352, 1360 (Fed. Cir. 2011). Rather, obviousness
`requires the additional showing that a person of ordinary skill at the time of
`the invention would have selected and combined those prior art elements in
`the normal course of research and development to yield the claimed
`invention. Id. “To satisfy its burden of proving obviousness, a petitioner
`cannot employ mere conclusory statements. The petitioner must instead
`articulate specific reasoning, based on evidence of record, to support the
`
`
`2 Patent Owner did not present any evidence or arguments directed to
`secondary considerations during this proceeding.
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`legal conclusion of obviousness.” In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364, 1380 (Fed. Cir. 2016).
`We analyze the challenges presented in the Petition in accordance
`with the above-stated principles.
`
`B. Level of Ordinary Skill in the Art
`Petitioner contends that a person of ordinary skill in the art, at the time
`of the effective filing date of the ’523 patent, would have had at least
`(i) “a Master’s degree in computer science, electrical engineering, or a
`related subject and at least three years of experience implementing systems
`for performing speech analysis,” or (ii) “a Bachelor’s degree in computer
`science, electrical engineering, or a related subject and at least five years of
`experience implementing systems for performing speech analysis.” Pet. 8
`(citing Ex. 1013 ¶ 30).
`Patent Owner disagrees with Petitioner’s proposed qualifications,
`alleging that the subject matter of the ’523 patent does not require the level
`of experience that Petitioner proposes. PO Resp. 11–12 (citing Ex. 2006
`¶¶ 25–27). Patent Owner contends that a person of ordinary skill in the art
`with a Master’s degree “need only have one year of experience,” and with a
`Bachelor’s degree “need only have three years of experience.” Id. at 12.
`In determining the level of ordinary skill in the art, various factors
`may be considered, including the “type of problems encountered in the art;
`prior art solutions to those problems; rapidity with which innovations are
`made; sophistication of the technology; and educational level of active
`workers in the field.” In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
`(citation omitted). The level of ordinary skill in the art also is reflected by
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`the prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`Cir. 2001).
`Considering the subject matter of the ’523 patent, the background
`technical field, the prior art, and the parties’ competing characterizations of
`the skilled artisan, we determine that the skilled artisan here would have had
`a Bachelor’s degree in computer science or electrical engineering, or some
`equivalent level of education, and that this would provide sufficient
`educational background in light of the technology at issue in the ’523 patent
`and prior art. We also determine that the skilled artisan here would have had
`three years of experience implementing systems for performing speech
`analysis. We find Petitioner’s proposed requirement for at least five years of
`experience in this context excessive in view of the known technologies
`underlying the claimed invention in the ’523 patent. See, e.g., Ex. 1001,
`15:5–7 (“[E]vent data, such as silence periods or over-talking, may be
`identified through analysis techniques known to those skilled in the art.”),
`15:58–60 (“[T]he translation of audio to text and subsequent data mining
`may be accomplished by systems known in the art.”).
`We note that although the parties present alternative levels of
`qualifications for the skilled artisan, Patent Owner concedes that “[the
`skilled artisan’s] conclusions would be the same no matter which level of
`skill were chosen” (PO Resp. 12), and therefore, accepting one of the
`parties’ proposed skill levels over the other’s proposed skill level does not
`affect our analysis of the merits of this case.
`
`C. Claim Construction
`We apply the claim construction standard articulated in Phillips v.
`AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). 37 C.F.R.
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`§ 42.200(b). Under Phillips, claim terms are afforded “their ordinary and
`customary meaning.” Phillips, 415 F.3d at 1312. “[T]he ordinary and
`customary meaning of a claim term is the meaning that the term would have
`to a person of ordinary skill in the art in question at the time of the
`invention.” Id. at 1313. “In determining the meaning of the disputed claim
`limitation, we look principally to the intrinsic evidence of record, examining
`the claim language itself, the written description, and the prosecution
`history, if in evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek,
`Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006) (citing Phillips, 415 F.3d
`at 1312–17). Extrinsic evidence is “less significant than the intrinsic record
`in determining ‘the legally operative meaning of claim language.’” Phillips,
`415 F.3d at 1317. Only terms that are in controversy need to be construed,
`and only to the extent necessary to resolve the controversy. Vivid Techs.,
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999); Nidec
`Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017
`(Fed. Cir. 2017) (applying Vivid Techs. in the context of an inter partes
`review).
`The parties dispute the meanings of three claim limitations, namely,
`(1) “computer telephony interpretation event(s),” as recited in independent
`claims 8 and 15, and “computer telephony interaction event,” as recited in
`dependent claim 13 (Pet. 12–17; PO Resp. 4, 12–15, 24; Pet. Reply 3; PO
`Sur-Reply 3–4); (2) “processing said telephonic communication into a
`plurality of computer telephony interpretation event[s],” as recited in
`independent claims 8 and 15 (Pet. 20–21; PO Resp. 23–25; Pet. Reply 3–7;
`PO Sur-Reply 4–7); and (3) “processing said telephonic communication into
`constituent voice data,” as recited in independent claim 15 and dependent
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`claim 14 (Pet. 21–22; PO Sur-Reply 7–10). To the extent necessary to
`resolve the controversy before us, we address claim interpretation in our
`unpatentability analysis below.
`
`D. Obviousness of Claims 8, 9, 14–16, and 20 over the Combination
`of Watson and Konig
`Petitioner contends claims 8, 9, 14–16, and 20 are unpatentable under
`35 U.S.C. § 103(a) as obvious over the combination of Watson (Ex. 1002)
`and Konig (Ex. 1003).3 Pet. 22–87; Pet. Reply 2–16. Patent Owner opposes
`Petitioner’s contentions. PO Resp. 15–40; PO Sur-Reply 1–24. For the
`reasons expressed below, and based on the complete record before us, we
`determine that Petitioner has demonstrated by a preponderance of evidence
`that claims 8, 9, 14–16, and 20 are unpatentable as obvious over the
`combination of Watson and Konig. We turn first to overviews of Watson
`and Konig.
`
`1. Overview of Watson
`Watson generally relates to a system for automated scoring of
`interactions, such as telephone calls, between customers and call center
`agents. Ex. 1002 ¶ 2. Figure 1 of Watson is reproduced below.
`
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`3 Watson and Konig were not of record during prosecution of the
`’523 patent. See Ex. 1001, code (56); Pet. 3.
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`Figure 1 is an illustration showing several interactive
`factors that are memorialized for an interaction in order
`to generate a score for the interaction.
`Ex. 1002 ¶ 7, Fig. 1.
`Figure 1 depicts interaction 100 comprising “a number of different
`interactive factors 103 that are memorialized during the recording or storing
`of the interaction 100 itself.” Ex. 1002 ¶ 14. Interactive factors 103 are,
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`from top to bottom, agent audio, customer audio, “computer telephony
`integration factors that relate to the operation of computer telephony that
`controls the telephone connections in a given call center,” operations of an
`agent device during the interaction, operations of a customer relations
`management (CRM) system during the interaction, and a time duration of
`the interaction. Id. ¶¶ 14–15.
`Watson’s automated interaction scoring system identifies events
`associated with each interactive factor. Ex. 1002 ¶ 16. The system
`(1) determines a classification (e.g., sales support, accounting or billing) for
`the interaction, (2) analyzes the interaction to identify events and/or patterns
`of events in the interaction as defined by rules applicable to the determined
`classification (e.g., the “utterance of a given phrase or word”), and
`(3) generates an interaction score indicating the “value” of the interaction,
`which can be used to rank the interaction relative to others. Id. ¶¶ 30, 33–
`34, 37–42, 47–53, Figs. 4, 6. For example, as shown in Figure 1 above,
`analysis of interaction 100 may result in identifying three audio events 106
`(“greeting event,” “stress event,” and utterance of the word “Supervisor”)
`and two computer telephony integration (CTI) events 109 (initial call routing
`and call transfer). Id. ¶¶ 16–17. Figure 3C of Watson is reproduced below.
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`Figure 3C is a diagram showing an example of
`rules applied by Watson’s system to generate a
`score for an interaction.
`Ex. 1002 ¶ 9, Fig. 3C. Figure 3C depicts class specific rule 163 defining
`patterns as “multiple events” (e.g., audio events, CTI events), “multiple
`patterns,” or “any combination of the two.” Id. ¶¶ 33–35.
`Petitioner contends Watson qualifies as prior art under 35 U.S.C.
`§ 102(e) based on its filing date. Pet. 3. We have no evidence of an
`invention date other than the earliest possible effective filing date of the
`challenged claims. We determine that Watson qualifies as prior art under 35
`U.S.C. § 102(e) because Watson’s filing date of June 30, 2006, is before the
`earliest possible effective filing date of the challenged claims, which is
`September 28, 2007. Ex. 1001, codes (22), (60); Ex. 1002, code (22).
`
`2. Overview of Konig
`Konig generally relates to a system for “automatically classifying a
`communication involving at least one human, e.g., a human-to-human
`telephone conversation, into predefined categories of interest, e.g., ‘angry
`customer.’” Ex. 1003, code (57). The system identifies linguistic events
`(e.g., “words, phrases, and sentences”) and non-linguistic events
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`(e.g., “silence, tone, and pitch”) within a communication by, for example,
`“word spotting,” and classifies the communication according to an overall
`confidence level. Id. at 3:13–26. The system receives user input to define
`categories according to particular words and phrases, and generates
`synonyms for those entered words and phrases once the user does so. Id.
`at 6:6–17. A call can then be classified according to the following process:
`1) a call is recorded or reviewed in real time as an acoustical file
`(e.g., a standard wave file); 2) an acoustical speaker separation is
`performed to distinguish Speaker A from Speaker B; 3) word
`spotting is performed to detect certain words or phrases for a
`particular event based on the occurrence or non-occurrence of
`certain words or phrases, including user-entered words and
`phrases and system-generated semantically equivalent words and
`phrases; 4) each event is given a particular confidence level
`based on whether the event occurred; 5) an overall confidence
`level for the classification is then determined; and 6) the call is
`classified into one or more categories corresponding to the events
`detected, in accordance with the overall confidence level.
`Id. at 11:12–30. Figure 1 of Konig is reproduced below.
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`Figure 1 is a screen shot of a user interface “Dashboard”
`showing call details in the “Supervisor” category.
`Ex. 1003, 3:64–67, Fig. 1.
`Figure 1 depicts a “Dashboard” “graphical user interface enabling
`users to interact with the classification system via [a] Web browser.” Id.
`at 5:22–25, 49–50. The page shows details for a call in the “Supervisor”
`category, including a timeline of the audio file, the determined category for
`each event (e.g., “Proper Opening,” “Account Management,” “Supervisor,”
`“Angry Customer”), and the distribution of events identified in the call
`(e.g., five Supervisor events, three Angry Customer events). Id. at 5:49–62.
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`Petitioner contends that Konig qualifies as prior art under 35 U.S.C.
`§ 102(e) based on its filing date. Pet. 3. We have no evidence of an
`invention date other than the earliest possible effective filing date of the
`challenged claims. We determine that Konig qualifies as prior art under
`35 U.S.C. § 102(e) because Konig’s filing date of June 18, 2004, is before
`the earliest possible effective filing date of the challenged claims, which is
`September 28, 2007. Ex. 1001, codes (22), (60); Ex. 1002, code (22).
`
`3. Independent Claim 8
`a) “A method for analyzing a telephonic communication
`between one or more customers and a contact center
`having one or more agents”
`The preamble of claim 8 recites a “method for analyzing a telephonic
`communication between one or more customers and a contact center having
`one or more agents.” Ex. 1001, 20:24–26. Petitioner cites Watson’s
`disclosure of a system and method for automated scoring of interactions,
`where such interactions include telephone calls between customers and
`agents received in call centers (i.e., “contact centers”). Pet. 29–30 (citing
`Ex. 1002 ¶¶ 13–22, 26, 31–35, 38–41, 47–53, Figs. 1, 3A-3C, 4, 6; Ex. 1013
`¶¶ 72–74). Neither Petitioner nor Patent Owner takes a position as to
`whether the preamble is limiting, nor does Patent Owner present arguments
`disputing the relied-upon Watson disclosures. Id. at 29; see generally PO
`Resp. 1–40; PO Sur-Reply 1–24. Because we find that Petitioner’s cited
`disclosure from Watson teaches a “method for analyzing a telephonic
`communication between one or more customers and a contact center having
`one or more agents,” we need not determine whether the preamble is
`limiting. See Nidec, 868 F.3d at 1017.
`
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`b) “recording, with a processor, onto a non-transitory
`computer readable medium a telephonic communication
`between a customer and an agent”
`As Petitioner asserts (Pet. 30), Watson discloses agents in call centers
`receiving telephone calls or communications from customers, and “with
`each call, an interaction [100] between the agent and the customer occurs.”
`Ex. 1002 ¶ 13; see id., Fig. 1. “In some cases, the interaction is recorded or
`stored for further evaluation of the performance of the agent.” Id. “The
`interaction 100 comprises a number of different interactive factors 103 that
`are memorialized during the recording or storing of the interaction 100
`itself,” where “interactive factors 103 may comprise audio signals such as
`one or more channels of agent and/or customer audio recorded or stored
`during the interaction 100 itself.” Id. ¶ 14. Watson also discloses
`processor 133 and memory 136, both coupled to local interface 139, where
`memory 136 stores database 146, which “includes various information such
`as, for example, interaction classifications 149, event rules 153, and
`interactions 100.” Id. ¶¶ 24–26.
`Patent Owner does not contend that recording of a telephonic
`communication between a customer and an agent is absent in Watson (see
`generally PO Resp.; PO Sur-Reply), and therefore, has waived such
`argument (see 37 C.F.R. § 42.23(a)). Patent Owner instead argues that
`recording of the telephonic communication in claim 8 must occur before the
`claimed step of “processing said telephonic communication into a plurality
`of computer telephony interpretation event[s],” and more generally, that the
`“recording,” “processing,” “analyzing,” and “classifying” steps recited in
`claim 8 must be performed in the order recited therein. See, e.g., PO
`Resp. 1–2 (“First, the completed communication is recorded. This recorded
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`communication is processed into a plurality of computer telephony
`interpretation events . . . . The events . . . are then analyzed and classified
`into types.” (emphases added)), 18–20, 25–26 (arguing “processing” must be
`of the “recorded telephone call” or of the “recorded telephonic
`communication”); PO Sur-Reply 10–11 (“[T]he patent specifically requires
`‘recording’ the ‘telephonic communication’ and then ‘processing’ that
`recorded ‘telephonic communication’ into computer telephony interpretation
`events.”). Petitioner disputes Patent Owner’s interpretation of claim 8 to
`require a specific order of steps, and in particular, to require that a telephonic
`communication first be recorded and thereafter that the recorded
`communication be processed: “[N]othing in the claim language precludes
`contemporaneous recording and processing of a telephonic communication,
`and it is therefore improper to import such a limitation.” Pet. Reply 7; see
`Pet. 30–31. We agree with Petitioner, as discussed below.
`
`(1) Claim Construction: Whether “Recording” a
`Telephonic Communication Must Occur Before
`“Processing” the Telephonic Communication and
`Whether “Processing” Must Be of the Recording of
`the Communication
`First, as argued by Petitioner (Pet. Reply 7), claim 8 broadly recites
`the steps of “recording” a first thing (i.e., a telephonic communication, or
`more simply, data); “processing” the first thing (data) into a second thing
`(other data); “analyzing” the second thing; and “classifying” the second
`thing, but notably does not recite, for example, processing the recording of
`the first thing (only processing the first thing).4 In other words, there is no
`
`4 Patent Owner argues that “to carry Petitioner’s burden, the Petition would
`have had to show one or more references teaching processing a first thing
`[i.e., first data] . . . into a second thing [i.e., second data] . . . followed by
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`other step that is contingent on the completion of the “recording” step.
`Indeed, claim 8 does not recite any limitation precluding the recording of a
`telephonic communication and the processing of the telephonic
`communication from being executed substantially concurrently or even in
`reverse order, particularly where these functions are performed by a
`computer (see Ex. 1001, 5:43–61). Thus, the claim language itself does not
`support Patent Owner’s proffered construction that the steps of claim 8 must
`be performed in the recited order or that the processing step requires
`processing of the recording of the telephonic communication. See Baldwin
`Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1345 (Fed. Cir. 2008)
`(“[A]lthough a method claim necessarily recites the steps of the method in a
`particular order, as a general rule the claim is not limited to performance of
`the steps in the order recited, unless the claim explicitly or implicitly
`requires a specific order.”).
`Second, claims must be interpreted “‘in view of the specification’
`without unnecessarily importing limitations from the specification into the
`claims.” E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir.
`2003) (citing Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193,
`1203–04 (Fed. Cir. 2002)) (emphasis added). Here, the Specification
`explicitly states that steps of the “present invention” are not limited to a
`particular sequence:
`Alternate implementations are included within the scope of the
`embodiments of the present invention in which functions may be
`executed out of order from that shown or discussed, including
`
`analyzing and classifying that second thing [i.e., second data] . . . .” PO
`Resp. 19–20. We note that here Patent Owner argues claim 8 requires
`processing of “a first thing” and not processing of a recording of the first
`thing.
`
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`substantially concurrently or in reverse ord
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