10705359 (B.P.A.I. Feb. 8, 2011)

Ex Parte Bargnes et al

Board of Patent Appeals and InterferencesFeb 8, 2011

10705359 (B.P.A.I. Feb. 8, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte GUY O. BARGNES, JOHN K. HOWE, CHARLES KELLY, JEAN-CLAUDE PIERRE, CHRIS W. LAVINGTON, and ANTONIO C. TORRES ____________ Appeal 2010-003478 Application 10/705,359 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and BIBHU R. MOHANTY, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-003478 Application 10/705,359 2 STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. § 134 (2002) of the final rejection of claims 1-32 which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b) (2002). SUMMARY OF THE DECISION We REVERSE. THE INVENTION The Appellants’ claimed invention is directed to a method of determining the efficiency of a repair process for a vehicle in a repair shop. (Spec. [0006]). Claim 1, reproduced below with the numbering in brackets added, is representative of the subject matter of appeal. 1. A method of determining an efficiency of a repair process for a vehicle in a repair shop utilizing a computer, said method comprising the steps of: creating a vehicle identifier for the vehicle; examining the identified vehicle to locate areas on the identified vehicle in need of repair; estimating an extent of a repair for the identified vehicle based on the examination and estimating a total labor hours to perform the repair process based on the extent of the repair; determining a vehicle production start period based upon when the repair process of the identified vehicle begins and determining a vehicle production finish period based upon when the repair process of the identified vehicle ends; [1] determining a total shop production hours based upon when the repair shop opened and closed for each day between the Appeal 2010-003478 Application 10/705,359 3 vehicle production start period and the vehicle production finish period; [2] inputting an estimate of the extent of the repair, an estimate of the total labor hours, the vehicle production start period, the vehicle production finish period and the total shop production hours into the computer; and [3] utilizing the computer to calculate a production process efficiency for a completed repair process by dividing the estimated total labor hours by the total shop production hours thereby revealing a true percentage efficiency of the repair process by calculating the production process efficiency utilizing hours. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: McGuire US 4,404,639 Sep. 13, 1983 Inoue US 5,317,503 May 31, 1994 Baldwin, Laura et al.; Transfer Pricing for Air Force Depot-Level Reparables, RAND Document, 1998. The following rejections are before us for review: 1. Claims 1-22, and 26, 30-32 are rejected under 35 U.S.C. § 103(a) as unpatentable over Mcguire, Inoue, and Baldwin. 2. Claims 23-25 and 27-29 are rejected under 35 U.S.C. § 103(a) as unpatentable over Mcguire, Inoue, Edwards, and Official Notice. Appeal 2010-003478 Application 10/705,359 4 THE ISSUES The issue in this case turns on whether the Appellants have shown the rejection of record is improper because McGuire fails to disclose claim limitation [1] as identified above. FINDINGS OF FACT We find the following enumerated findings of fact (FF) are supported at least by a preponderance of the evidence:2 FF1. McGuire has disclosed a method for facilitating the diagnosis and servicing of automotive vehicles wherein a network computer interfaces between service agencies, a vehicle data base, and a record storage system (Abstract). FF2. McGuire in Fig. 2C discloses a “Daily Recap” but does not disclose determining total shop production hours based upon when the repair shop opened and closed for each day between the vehicle production start period and the vehicle production finish period. FF3. McGuire at Col. 9:41-68 discloses a “Daily Recap” that can be performed at anytime but does not disclose determining total shop production hours based upon when the repair shop opened and closed for each day between the vehicle production start period and the vehicle production finish period. FF4. McGuire at Col. 14:9-20 discloses that an operator may display a daily recap of work in progress but does not disclose determining total shop 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2010-003478 Application 10/705,359 5 production hours based upon when the repair shop opened and closed for each day between the vehicle production start period and the vehicle production finish period. ANALYSIS The Appellants argue that the rejection of claim 1 is improper because the prior art fails to disclose claim limitation [1] (Br. 4-8, Reply Br. 1-4). In contrast, the Examiner has determined that the cited claim limitation in present in McGuire at Figure 2C, Col. 9:41-68, and Col. 14:9- 20 (Ans. 4-5, 35-36). We agree with the Appellants. Claim limitation [1] cited above requires: [1] determining a total shop production hours based upon when the repair shop opened and closed for each day between the vehicle production start period and the vehicle production finish period. McGuire at Fig. 2C, Col. 9:41-68, Col. 14:9-20 does not disclose the cited claim limitation [1] (FF2, FF3, FF4). The Examiners assertion that McGuire’s daily recap can be performed at the beginning or end of the working day does not equate with the cited claim limitation [1] which requires “determining a total shop production hours based upon when the repair shop opened and closed for each day”. The Examiner has also determined that McGuire discloses total sales, work orders completed, and service history and that it is “implicitly disclosed that includes when the repair shop opens and closes each day with all the services and work orders completed” because “[t]he system permits the operator to tally daily operations and work in progress”(Ans. 35). The disclosure of any sales, Appeal 2010-003478 Application 10/705,359 6 work orders completed, or service history in McGuire does not specifically establish that determining that the total shop production hours was based upon when the repair shop opened and closed for each day between the vehicle production start period and the vehicle production finish period as the cited limitation [1] requires. “To establish inherency, the extrinsic evidence must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill. Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.’” In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations omitted) (internal quotation marks omitted). In this case, it cannot be determined that the cited claim limitation [1] is present in McGuire beyond probabilities and possibilities. For these reasons the rejection of claim 1 and its dependent claims in not sustained. DECISION The Examiner’s rejection of claims 1-32 is reversed. REVERSED Appeal 2010-003478 Application 10/705,359 7 MP HOWARD & HOWARD ATTORNEYS PLLC BASF CORPORATION 450 West Fourth Street Royal Oak MI 48067