Ex Parte Brennan

Patent Trials and Appeals Board

Jul 1, 2019

13965824 - (D) (P.T.A.B. Jul. 1, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/965,824 08/13/2013
28863 7590 07/03/2019
SHUMAKER & SIEFFERT, P.A.
1625 RADIO DRIVE
SUITE 100
WOODBURY, MN 55125
FIRST NAMED INVENTOR
Patrick J. Brennan
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
1220-001US02 1038
EXAMINER
STERRETT, JONATHAN G
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
07/03/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
pairdocketing@ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PATRICK J. BRENNAN
Appeal2017-008663 1
Application 13/965,8242
Technology Center 3600
Before ANTON W. PETTING, BRUCE T. WIEDER, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
2 and 4--40. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing
was held on May 14, 2019.
We AFFIRM.
1 Our Decision references Appellant's Appeal Brief ("Br.," filed December
15, 2016), and the Examiner's Answer ("Ans.," mailed March 10, 2017) and
Final Office Action ("Final Act.," mailed April 13, 2016).
2 Appellant identifies "the sole inventor, Patrick J. Brennan" as the real
party in interest (Br. 3).
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Application 13/965,824
CLAIMED SUBJECT MATTER
Appellant's claims relate to " [a] system and method of managing
supply chains across separate organizations" (Abstract).
Claims 15, 16, 24, and 29 are the independent claims on appeal.
Claim 29, reproduced below with bracketed notations added, is illustrative
of the claimed subject matter:
29. A computer-implemented method of managing supply chains
across a plurality of separate organizations, comprising:
[a] defining, for each organization, the organizations that
supply items to that organization and the organizations that use
items supplied by that organization, wherein the organizations
form a consumer/producer hierarchy of three or more layers,
including a first, a second and a third layer, wherein
organizations at the first layer supply items to one or more
organizations at the second layer and wherein organizations at
the second layer supply items to one or more organizations at
the third layer, wherein each item may include a product or a
service;
[b] creating a supply chain database on a server
connected to a network, wherein the supply chain database
includes an entry for each item supplied by one organization to
another organization, wherein the entry includes an indication
of the product or service supplied, a primary location where the
product is manufactured or the service is performed, and a
disaster recovery plan detailing an alternate location where the
product could be manufactured or the service could be
performed, and a recovery time associated with bringing the
alternate location online, wherein the supply chain database
further includes an access control mechanism used to limit
access by an organization to the entries for items that are not
part of the organization's supply chain;
[ c] detecting a supply chain risk event;
[ d] determining items affected by the supply chain risk
event, wherein determining includes determining a first item
supplied by an organization at the first layer that is affected by
the supply chain risk event;
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[ e] determining, for each item affected, a time to recover
from the supply chain risk event;
[ fJ generating a report for each organization affected by
the supply chain risk event, wherein the report indicates the
items at risk and the time to recover for each item; and
[g] sending the report to each organization affected by
the supply chain risk event, wherein sending the report includes
sending the report to organizations at the second layer that
receive the first item and to organizations at the third layer that
receive items from the second organizations that are dependent
on the first item.
REJECTIONS
Claims 2 and 4--40 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 2, 5-17, 19-29, and 34--40 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Ericsson's proactive supply chain risk
management approach after a serious sub-supplier accident, Andreas
Norrman, et al., International Journal of Physical Distribution & Logistics
Management, Vol. 34, No. 5, 2004, pp. 434--456 (hereinafter, "Norrman")
and Mamou (U.S. 7,814,142 B2, iss. Oct. 12, 2010).
Claims 30-32 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Norrman, Mamou, and Mizrahi (U.S. 2006/0155513 Al, pub. July 13,
2006).
Claims 4 and 18 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Norrman, Mamou, and Meyer (U.S. 2005/0055308 Al, pub. Mar. 10,
2005).
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Claim 33 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Norrman, Mamou, Mizrahi, and Debra Elkin, 18 Ways to Guard Against
Disruption3, Supply Chain Management Review (hereinafter, "Elkins").
ANALYSIS
Patent-Ineligible Subject Matter
Independent claims 15, 16, 24, and 29, and dependent claims 2, 4-14, 17-
23, 25-28, and 30---40
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
35 U.S.C. § 101. Yet, subject matter belonging to any of the statutory
categories may, nevertheless, be ineligible for patenting. The Supreme
Court has interpreted § 101 to exclude laws of nature, natural phenomena,
and abstract ideas, because they are regarded as the basic tools of scientific
and technological work, such that including them within the domain of
patent protection would risk inhibiting future innovation premised upon
them. Ass 'nfor Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013).
Of course, "[a]t some level, 'all inventions ... embody, use, reflect,
rest upon, or apply'" these basic tools of scientific and technological work.
Alice Corp. v. CLS Bank Int 'l, 573 U.S. 208, 217 (2014) (internal citation
omitted). Accordingly, evaluating ineligible subject matter, under this
judicial exclusion, involves a two-step framework for "distinguish[ing]
between patents that claim the buildin[g] block[ s] of human ingenuity and
3 Available at
http://www.manufacturing.net/scm/index.asp?layout=article&articleid=CA5
04609&nid=2702&rid=546163247
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those that integrate the building blocks into something more, thereby
transform[ing] them into a patent-eligible invention." Id. (internal quotation
marks and citation omitted). The first step determines whether the claim is
directed to judicially excluded subject matter (such as a so-called "abstract
idea"); the second step determines whether there are any "additional
elements" recited in the claim that ( either individually or as an "ordered
combination") amount to "significantly more" than the identified judicially
excepted subject matter itself. Id. at 217-18.
The USPTO recently published revised guidance on the application of
§ 101, in accordance withjudicial precedent. USPTO, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 57 (Jan. 7, 2019)
("2019 Revised Guidance"). Under the 2019 Revised Guidance, a claim is
"directed to" an abstract idea, only if the claim recites any of
(1) mathematical concepts, (2) certain methods of organizing human
activity, and (3) mental processes - without integrating such abstract idea
into a "practical application," i.e., without "apply[ing], rely[ing] on, or
us[ing] the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception." Id. at 53-55. A claim so
"directed to" an abstract idea constitutes ineligible subject matter, unless it
recites an additional element ( or combination of elements) amounting to
significantly more than the abstract idea. Id. at 56.
Appellant argues that the Examiner's rejection is in error because the
Examiner fails to establish a prima facie case of subject matter ineligibility
(see Br. 14--20). More particularly, Appellant argues the Examiner "failed
to establish that any of claims 2 and 4--40 are directed to a specific abstract
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idea and that the specific abstract idea corresponds to one the courts have
identified as an abstract idea" (id. at 19-20). Appellant's arguments are not
persuasive.
In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
analyzes the claims using the Mayo/Alice two-step framework (see Final
Act. 13-19; see also Ans. 5-22). Here, the Examiner determines the claims
are directed to "the abstract idea of assessing and managing risk in a supply
chain" (Final Act. 13; Ans. 5-9), and that they recite:
the gathering of intangible data (i.e. supply chain partner
capabilities) and then using this data to determine if the partner
is performing as desired - this is similar to the Ambry /Myriad
cases which compare data regarding a sample or test subject to
a control or target data. In this case the control or target data is
the desired supply chain performance standard for the partner
organizations.
(Ans. 9). The Examiner further determines that the additional elements of
the claims, taken alone and as an ordered combination, do not ensure that the
claims amount to significantly more than the abstract idea (see Final Act. 3-
7, 13-14; see also Ans. 11-22). The Examiner, thus, has clearly followed
the two-part framework specified by the Supreme Court in Mayo/Alice
consistent with Office guidelines.
In this regard, the Examiner has articulated the reasons for the
rejection and has notified Appellant of the reasons for the rejection "together
with such information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application." 35 U.S.C.
§ 132. And we find that, in doing so, the Examiner sets forth a prima facie
case of subject matter ineligibility. See In re Jung, 637 F.3d 1356, 1362
(Fed. Cir. 2011); Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990)
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(Section 132 "is violated when a rejection is so uninformative that it
prevents the applicant from recognizing and seeking to counter the grounds
for rejection.").
Turning to the first step of the Mayol Alice framework, we are not
persuaded by Appellant's arguments that the Examiner "merely identified a
variety of abstract ideas" (Br. 16) and erred in determining that the present
claims are directed to an abstract idea (see id. at 14--20). Here, in rejecting
the claims under 3 5 U.S. C. § 101, the Examiner determined that the claims
are directed to "the abstract idea of assessing and managing risk in a supply
chain" (Final Act. 2; Ans. 5---6). The Examiner also determined "the claims
are directed to steps which are clearly directed to an abstract idea of
gathering information via surveys sent to members of a supply chain in order
to assess and control the supply chain" (Ans. 6), as well as being "directed to
an abstract idea of managing a supply chain organization by detecting an
event and then in response to that event performing various abstract idea
steps to characterize the supply chain and disseminate reports" (id. at 10; cf
Final Act. 13-15). As described below, the Examiner's characterization of
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exemplary independent claim 294 is, in our view, fully consistent with the
Specification, including the claim language. 5
Under the first prong of step 2A of the 2019 Revised Guidance, we
first determine if the claims recite an abstract idea. In this regard, we note
that the Specification is titled "SYSTEM AND METHOD FOR
MANAGING SUPPLY CHAINS ACROSS SEPARATE
ORGANIZATIONS." The Specification identifies that "[i]t is critical for an
organization that relies on partner organizations to ensure that its partners
have capabilities in place to consistently meet the organization's objectives"
(Spec. 1:12-14). According to the Specification, "[l]arge organizations
often rely on many dozens, hundreds or thousands of partner organizations"
(id. at 1 :26-27). The Specification describes that one problem associated
4 The Examiner addresses independent claim 29 as exemplary in the Final
Action (see Final Act. 14--15 stating with reference to independent claim 29,
"the other independent claims 15, 16 and 24 are similar"). We agree with
the Examiner that independent claims 15, 16, 24, and 29 are substantially
similar, and note that Appellant generally argues claims 2 and 4--40 as a
group (see Br. 14--37). However, to the extent Appellant addresses the
independent claims separately, Appellant's arguments with respect to the
independent claims are almost identical (see, e.g., Br. 14--37).
5 That the claim language includes more words than the phrase the
Examiner used to articulate the abstract idea, and that the Examiner, thus,
articulates the abstract idea at a higher level of abstraction than would
Appellant is an insufficient basis to persuasively argue that the claim
language has been mischaracterized. See Apple, Inc. v. Ameranth, Inc.,
842 F.3d 1229, 1240-41 (Fed. Cir. 2016) ("An abstract idea can generally be
described at different levels of abstraction. As the Board has done, the
claimed abstract idea could be described as generating menus on a computer,
or generating a second menu from a first menu and sending the second menu
to another location. It could be described in other ways, including, as
indicated in the specification, taking orders from restaurant customers on a
computer.").
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with relying on partner organizations stems from "unplanned disruptions to
products and services required for production" which "can cause significant
financial hardships and customer satisfaction issues for [the] organization"
(id. at2:12-14).
To address problems like "unplanned disruptions," the Specification
describes that organizations use approaches such as "[ m Jass communication
to all partners," "[p]artner data gathering," and "[p]ersonal capability
reviews with top partners only" (id. at 3:21-25). According to the
Specification, these approaches, however, are "ineffective at producing mass
improvements," leave "the organization unaware of risks and partner
capabilities since it does not gather data" (id. at 4:3-7), are not forward
looking (id. at 4:10-12), and require "[m]annually intensive review" (id. at
4: 16-29). To address these drawbacks, the present invention provides a
"system and method for managing supply chain issues in depth and across
many partner organizations" (id. at 5:5---6).
Consistent with this description, independent claim 29 recites broadly
"[a] computer-implemented method of managing supply chains across a
plurality of separate organizations" including steps for "defining, for each
organization, the organizations that supply items to that organization and the
organizations that use items supplied by that organization," "creating a
supply chain database" that is access controlled and "includes an entry
[including the product/service, its location, a disaster recovery plan
including a recovery time] for each item supplied by one organization to
another organization," "detecting a supply chain risk event," "determining
items affected by the supply chain risk event," "determining, for each item
affected, a time to recover from the supply chain risk event," "generating a
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report," and "sending the report." Independent claims 15, 16, and 24 include
similar limitations.
Understood in light of the Specification, independent claim 29
includes steps for defining/mapping a supply chain hierarchy, storing the
access-controlled supply chain hierarchy, which includes an access control,
monitoring the supply chain hierarchy, determining a recovery time, and
generating and sending reports. See Final Act. 14--15. Independent claims
15, 16, and 24 include similar steps/instructions. Thus, we agree with the
Examiner that the independent claims are directed broadly to "assessing and
managing risk in a supply chain" (Final Act. 2; Ans. 5-6) which the
Examiner characterizes as the "gathering of intangible data (i.e. supply chain
partner capabilities) and then using this data to determine if the partner is
performing as desired" (Ans. 9), and thus, "similar to the Ambry/Myriad
cases which compare data regarding a sample or test subject to a control or
target data. In this case the control or target data is the desired supply chain
performance standard for the partner organizations" (id.). And, when
viewed through the lens of the 2019 Revised Guidance, the Examiner's
analysis depicts the claimed subject matter as one of the ineligible "[ m ]ental
processes" that include "concepts performed in the human mind (including
an observation, evaluation, judgment, opinion)," and thus an abstract idea.
See 2019 Revised Guidance, 84 Fed. Reg. at 51-52.
Next, we tum to the second prong of step 2A of the 2019 Revised
Guidance and determine whether the claims recite a practical application of
the recited judicial exception. Here we look to see if, for example, (i) any
additional elements of the claims reflects an improvement in the functioning
of a computer or to another technological field, (ii) an application of the
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judicial exception with, or by use of, a particular machine, (iii) a
transformation or reduction of a particular article to a different state or thing,
or (iv) a use of the judicial exception in some other meaningful way beyond
generally linking the use of the judicial exception to a particular
technological environment. See 2019 Revised Guidance, 84 Fed. Reg. at 55;
See also MPEP § 2106.05(a}-(c), (e}-(h).
Appellant argues that the claims are patent-eligible because "[ e Jach of
the claims improve computer-related technology by allowing computer
performance of a function not previously performable by a computer" (Br.
18). However, as the Examiner points out, "the invention is disclosed as
using conventional computer network and communication tools (i.e.
Microsoft Outlookâ„¢ and Accessâ„¢) (Ans. 12 ( citing Spec. ,r,r 44--45)).
Although, the steps recited by the independent claim 29 are "computer-
implemented," mental processes remain unpatentable even when automated
to reduce the burden on the user of what once could have been done with
pen and paper. See Cy her Source Corp. v. Retail Decisions, Inc., 654 F .3d
1366, 1375 (Fed. Cir. 2011) ("That purely mental processes can be
unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson."); see also In re
Salwan, 681 F. App'x 938, 941 (Fed. Cir. 2017) (claims for organizing
patient health information, transferring patient health information to a
patient network, and billing insurance companies held patent-ineligible).
We also are not persuaded by Appellant's argument that independent
claims 15, 16, 24, and 39 "are 'directed to a specific technical solution' and
are 'necessarily rooted in computer technology in order to overcome a
problem,' as required under DDR Holdings," and as such, not directed to an
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abstract idea (Br. 28, 30). Instead, we agree with the Examiner (Ans. 18-19)
that the "technical solution" or "improvement" to which Appellant refers is a
business improvement rather than an improvement to a technological or
technical field (see OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359,
1363 (Fed. Cir. 2015) ("[R]elying on a computer to perform routine tasks
more quickly or more accurately is insufficient to render a claim patent
eligible."). We also agree with the Examiner that the problem to which
Appellant is concerned "existed before the [I]nternet" (Ans. 18; see also id.
at 21-22; cf Br. 36-37). See Intellectual Ventures I LLC v. Capital One
Bank (USA), 792 F.3d 1363, 1371 (Fed. Cir. 2015) (explaining that the
claims there "do not address problems unique to the Internet, so DDR has no
applicability").
Furthermore, we find no indication in the Specification that the
present invention improves a computer or other technology, invokes any
assertedly inventive programming, requires any specialized computer
hardware or other inventive computer components (see, e.g., Spec. 44:2-5,
26-30; 45: 16-18; 49:9-24; 52: 14--18; 54:22-27; 56:23-27), i.e., a particular
machine, or that the claimed invention is implemented using other than
generic computer components to perform generic computer functions. See
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) ("[A]fter Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible."). In this regard, the Specification discloses
[t]here are many ways to store partner information that is
gathered for the System and Method for Managing Partners. One
approach is to use a database, such as Microsoft SQL Server,
Oracle, IBM DB2, My SQL, Microsoft Access, etc. This is
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particularly useful in embodiments of PCI that entail many
partners. Another embodiment with say, just a couple dozen
partners may use office productivity applications such as
spreadsheets and word processing documents.
(Spec. 54:22-27).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes any improvement in computer technology and/or
functionality to the claimed invention or that otherwise indicates that the
claimed invention "appl[ies ], rel[ies] on, or us[ es] the judicial exception in a
manner that imposes a meaningful limit on the judicial exception, such that
the claim is more than a drafting effort designed to monopolize the judicial
exception." See 2019 Revised Guidance, 84 Fed. Reg. at 54.
Appellant further argues that independent claims 15, 16, 24, and 39
are not directed to an abstract idea pursuant to the Federal Circuit decision in
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) (Br. 28, 30).
More particularly, Appellant argues that "as in Enfzsh, since the particular
data structure approach increases the efficiency of execution of the supply
chain management computing system by streamlining the database structure,
resulting in faster search times and smaller memory requirements,
Appellant's claimed invention is patent-eligible" (Br. 28, 30).
However, there is a fundamental difference between computer
functionality improvements, on the one hand, and uses of existing computers
as tools to perform a particular task, on the other (see, e.g., Spec. 44:2-5,
26-30; 45:16-18; 49:9-24; 52:14--18; 54:22-27; 56:23-27). Indeed, the
Federal Circuit applied this distinction in Enfzsh in rejecting a§ 101
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challenge at the step one stage of the Mayo/Alice analysis because the claims
at issue focused on a specific type of data structure, i.e., a self-referential
table for a computer database, designed to improve the way a computer
carries out its basic functions of storing and retrieving data, and not on
asserted advances in uses to which existing computer capabilities could be
put. Enfzsh, 822 F.3d at 1335-36.
We find no parallel here between independent claims 15, 16, 24, and
39 and the claims in Enfzsh nor any comparable aspect in claims 15, 16, 24,
and 39 that represents "an improvement to computer functionality." Instead,
we agree with the Examiner that "[t]he claimed invention's use of computer
and networking technology is routine and conventional" (Ans. 15), and the
claims are "directed to an improvement in how different companies
cooperate to deliver goods/services to market" which "is a business
management issue and not a technological one" (id. at 18).
Turning to Step 2B of the of the 2019 Revised Guidance, we
determine whether the additional elements or combination of elements
(1) add a specific limitation or combination of limitations that is not well-
understood, routine, and conventional activity in the field, which is
indicative that an inventive concept may be present; or (2) simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception,
which is indicative that an inventive concept may not be present. See 2019
Revised Guidance, 84 Fed. Reg. at 56.
Appellant argues that independent claims 15, 16, 24, and 39 "include
additional elements that amount to 'significantly more' than a judicial
exception itself' (Br. 31-36). However, we agree with the Examiner that
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"[t]he claimed invention utilizes routine computer technology to share
information across a network ( e.g. the internet). Further the claimed
invention uses the routine and conventional aspects of a computer network
that provides a login/password access. Both of these are routine and
conventional computer functions" (Ans. 11 ).
In this regard, we note that the steps for defining/mapping a supply
chain hierarchy, storing the access-controlled supply chain hierarchy,
monitoring the supply chain hierarchy, generating a report, and then sending
the report, amount to nothing more than mere instructions to implement the
abstract idea on a computer-none of which add an inventive concept
because they merely require the application of conventional, well-known
analytical steps. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716
(Fed. Cir. 2014) ("[T]he claimed sequence of steps comprises only
'conventional steps, specified at a high level of generality,' which is
insufficient to supply an 'inventive concept."' (citing Alice, 134 S. Ct. at
2357)). Thus, each limitation, at best, does no more than require a generic
computer to perform generic computer functions (see Final Act. 4, 14--15;
see also Ans. 5-22).
And, considered as an ordered combination, the computer components
of Appellant's independent claims add nothing that is not already present
when the limitations are considered separately. Viewed as a whole,
Appellant's claims simply recite the concept of "assessing and managing
risk in a supply chain" (Final Act. 2; Ans. 5---6). The claims do not, for
example, purport to improve the functioning of the computer itself. Nor do
they effect an improvement in any other technology or technical field.
Instead, the claims at issue amount to nothing significantly more than an
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instruction to apply the abstract idea, which under our precedents, is not
enough to transform an abstract idea into a patent-eligible invention. See
Alice, 134 S. Ct. at 2360.
Appellant's other arguments, including those directed to now-
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Guidance at 51 ("Eligibility-related guidance issued
prior to the Ninth Edition, R---08.2017 of the MPEP (published Jan. 2018)
should not be relied upon.").)
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claims 15, 16, 24, and 29 under 35 U.S.C. § 101.
We also sustain the Examiner's rejection of claims 2, 4--14, 17-23, 25-28,
and 30-40, which depend from independent claims 15, 16, 24, and 29, and
are not argued separately.
Obviousness
Independent claims 15, 16, and 29, and dependent claims 2, 4-14, and 17-
23
We are not persuaded by Appellant's argument that the Examiner
erred in rejecting independent claims 15, 16, and 29 under 35 U.S.C.
§ 103(a) because the combination ofNorrman and Mamou fails to disclose
or suggest the subject matter of independent claims 15, 16, and 29 (Br. 39-
47).
Instead, we agree with, and adopt, the Examiner's findings and
rationales as our own (see Final Act. 19-50; see also Ans. 22-29). We add
the following discussion for emphasis.
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Norrman is a journal article discussing a proactive supply chain risk
management approach (Ericsson risk management evaluation tool
(ERMET)) utilized by Ericsson Telecommunications (Norrman, 434, 445).
Norrman describes that "[t]he focus of supply chain risk management
(SCRM) is to understand, and try to avoid, the devastating ripple effects that
disasters or even minor business disruptions can have in a supply chain" (id.
at 435). Norrman discloses that "risk mapping, i.e., using a structured
approach and mapping risk sources and thereby understanding their potential
consequences" is an important tool in risk management (id. at 438).
Norrman further describes business continuity management (BCM) as it is
related to risk management because "it includes the actions to be taken,
resources required, and procedures to be followed to ensure the continued
availability of essential services, programs and operations in the event of
unexpected interruptions" (id. at 437--439). Norrman discloses that
[ s ]upply chain risk management is not only to analyze, assess and
manage internal risks and try to plan for business continuity for
the own company. SCRM means widening this approach to the
chain of suppliers and suppliers' suppliers. This could be done
by visiting suppliers [to] analyze and assess them, but more
proactively to make them implement a SCRM approach
themselves, which guarantees a further spread upstream.
(Id. at 450).
Norrman discloses that "[t]he first activities in developing business
continuity plans are identifying the risks and assessing their probability and
impact" (id. at 440). Following this, "strategies and recovery plans should
be developed that could be implemented both before the incident ( similar to
risk management strategies) and after the incident" (id.). These strategies
include, for example, "use of spare capacity within the organization,"
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"shutdown of marginal product lines and transfer of key products to those
production facilities," and "outsourcing to sub-contractors, job shops, etc."
(id.). Norrman further discloses "identif[ying] and analyz[ing] its supply
chain risks by mapping the supply chain upstream, looking at suppliers as
well as products/services" (id. at 444). As part of this analysis, Norrman
discloses classifying components into different classes based on the number
of sources available for that component, e.g., "two or more manufacturers or
one manufacturer with two or more sites" (id. at 445), and what the
"business recovery time" (BRT) for each component will be, e.g., "less than
three months to get deliveries from an alternative source" (id.).
Norrman also discusses "risk treatment, which includes both
developing risk mitigation strategies and deciding on those" (id. at 449). As
part of this step, Norrman describes
[i]f an incident occurs, this should be reported to either the
sourcing task force (if external supplier) or the SCM task force
and production task force (if internal supplier). When an incident
has been reported, it should then be communicated to the other
task forces as well as to the supply chain risk manager and the
corporate risk management.
(Id. at 449 (citing Fig. 12)).
Mamou is directed to a user interface which is deployed as a service
in a services oriented architecture capable of being used in a data integration
platform (Mamou, 3:54--56). More particularly, Mamou discloses
[t]he platform 100 may also include a database or data base
management system 112. The database 112 may be used to store
information temporally, temporarily, or for permanent or long-
term storage. For example, the data integration system 104 may
collect data from one or more data sources 102 and transform the
data into forms that are compatible with one another or
compatible to be combined with one another. Once the data is
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transformed, the data integration system 104 may store the data
in the database 112 in a decomposed form, combined form or
other form for later retrieval.
(Id. at 13:24--33). Mamou further discloses a login and validation process
(id. at 23:38--49).
Appellant argues that N orrman, upon which the Examiner relies, does
not disclose or suggest an entry that includes "a disaster recovery plan
detailing an alternate location where the product could be manufactured or
the service could be performed," as recited by limitation [b] of independent
claim 29, and similarly recited by independent claims 15 and 16 (Br. 39--42).
More particularly, Appellant argues that the Examiner's reliance on
Norrman's "business recovery time" does not disclose or suggest "a disaster
recovery plan detailing an alternate location where the product could be
manufactured or the service performed," as required by independent claims
15, 16, and 29 (Br. 41--42). We cannot agree.
At the outset, we note that the Examiner does not rely on Norrman's
"business recovery time" to address the "disaster recovery plan"; but instead,
relies on the "[p]ost-incident strategies" described by Norrman at page 440
(see Ans. 22). Here, as the Examiner points out, the strategies identified by
Norrman "suggest an alternate location where a product could be
manufactured in response to a disaster ( e.g. using spare capacity, using
marginal product lines to manufacture key products, finding other
subcontractors to outsource to or the establishment of temporary facilities)"
(id. at 22-23 (citing Norrman, 440)). Thus, we agree the Examiner that
Norrman discloses "a disaster recovery plan detailing an alternate location
where the product could be manufactured or the service could be
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performed," as recited by limitation [b] of independent claim 29, and
similarly recited by independent claims 15 and 16.
Appellant also argues that N orrman, upon which the Examiner relies,
fails to disclose or suggest "generating a report for each organization
affected by the supply chain risk event, wherein the report indicates the
items at risk and the time to recover for each item," as recited by limitation
[f] of independent claim 29, and similarly recited by independent claims 15
and 16 (Br. 42--46).
However, we agree with the Examiner that Norrman discloses the
argued feature (see Ans. 24--27 (citing Norrman, 444, 445, 449; Figs. 6, 7, 9,
10, 12)). In making this determination, we note that Norrman describes a
"risk assessment and treatment template along with a contingency plan
template which includes fields for the items at risk along with mitigation
strategies, and a contingency plan which includes details for the "response
phase," "recovery phase," and "restoration phase" (Norrman, 448). As
discussed above, Norrman discloses that "[i]f an incident occurs, this should
be reported to either the sourcing task force (if external supplier) or the SCM
task force and production task force (if internal supplier)" (id. at 449).
Norrman further discloses that"[ w ]hen an incident has been reported, it
should then be communicated to the other task forces as well as to the
supply chain risk manager and the corporate risk management" (id. ( citing
id. at Fig. 12).
Appellant takes the position that "Norrman is incapable of 'sending
the report to each organization affected by the supply chain risk event'"
because "N orrman describes a risk management system for a single
organization" (Br. 44). However, Appellant's argument is not persuasive at
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least because Norrman identifies that its SCRM approach is capable of
dealing with risks for a single company "or, preferably, a supply chain of
three or more companies" (id. at 436). Thus, we agree with the Examiner
that Norrman discloses "generating a report for each organization affected
by the supply chain risk event, wherein the report indicates the items at risk
and the time to recover for each item," as required by independent claims 15,
16, and 29. We note this determination is reasonable in view of Appellant's
Specification which describes an "organization" to include "[b ]usinesses that
rely on other organizations substantially for sales and distribution services"
(Spec. 1:17-18).
Appellant still further argues that "merely combining the 'risk
management policies' of N orrman with the 'database teachings' of Mamou
'regarding storing information in a database"' fails to disclose or suggest a
database including the "entry" required by limitation [b] of independent
claim 29, and similarly recited by independent claims 15 and 16 (Br. 45--4 7).
We cannot agree.
Addressing the argued limitation, the Examiner finds that Norrman
discloses the "entry" data required by independent claims 15, 16, and 29 (see
Final Act. 20-21 (citing Norrman, 441,445); see also Ans. 22-23 (citing
Norrman, 440)), but does not explicitly disclose where these data are stored
(Ans. 27). To address this deficiency, the Examiner finds Mamou discloses
"a database which provides explicitly for reports to be generated in an
organization" (Ans. 27; see also Final Act. 24. (citing Mamou, 3:10-24,
13:24--33)). The Examiner explains that the combination ofNorrman and
Mamou "would have provided the predictable result of providing a database
for sharing reports ( such as those taught by N orrman above in incident
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reporting and contingency plan communication) among those in an
organization" (Ans. 27). Appellant has presented no persuasive argument or
technical reasoning to demonstrate that the Examiner's finding is
unreasonable or unsupported.
Appellant also argues that the combination ofNorrman and Mamou
fails to disclose or suggest "wherein the supply chain database further
includes an access control mechanism used to limit access by an
organization to the entries for items that are not part of the organization's
supply chain," as recited by limitation [b] of claim 29, and similarly recited
by independent claims 15 and 16 (Br. 46-4 7). More particularly, Appellant
argues that the system described by Norrman would only be accessible by
individuals in a single organization (id. at 46-47).
We are not persuaded by Appellant's argument at least because
Norrman identifies that its SCRM approach is capable of dealing with risks
for a single company "or, preferably, a supply chain of three or more
companies" (Norrman, 436). Moreover, we agree with the Examiner that
"Mamou teaches an access control mechanism (i.e. logon/password)" (Ans.
28; see also Final Act. 24--25 (citing Mamou, 23:38--49), which is similar to
the login/password protected access controls described in Appellant's
Specification (see Spec. 55:20-56:5). We also note that Mamou describes
security services which are more granular (see Mamou, 85: 1---6, describing
"tracking access, restricting access, or the like, the user can invoke a security
module 12600 as a service in a services oriented architecture, so that the user
does not have to create a separate security facility for each data integration
job or task.").
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In view of the foregoing, we sustain the Examiner's rejection of
independent claims 15, 16, and 29 under 35 U.S.C. § 103(a). We also
sustain the Examiner's rejections of the dependent claims 2, 5, 7-14, 17, and
19-23, which are not argued separately (see Br. 47). 6
With respect to dependent claims 4 and 18, Appellant argues that the
combination ofNorrman, Mamou, and Meyer fails to disclose or suggest
"generating a map showing the primary location for each item and wherein
detecting includes displaying supply chain risk event locations along with
selected primary locations on the map," as recited by claim 4, and similarly
recited by claim 18 (Br. 47--48). More particularly, Appellant argues that
"[t]here is no way to show the physical location of supply chain risk event
locations in any meaningful way in the map shown in FIG. 7 ofNorrman"
(id. at 48). We cannot agree.
At the outset, we note that the Examiner does not rely on Norrman
alone to address the argued limitation, but rather on the combined teachings
ofNorrman, Mamou, and Meyer (see Ans. 28-29). See In re Merck & Co.,
Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be
established by attacking [the] references individually where the rejection is
based upon the teachings of a combination of references") ( citation omitted).
In contrast to Appellant's argument, the Examiner finds that Figure 7
ofNorrman discloses "a supply chain map showing the location and product
6 We acknowledge Appellant's reference to dependent claims 5 and 19 (see
Br. 49). However, the mere reference to claims does not rise to the level of a
separate argument for patentability. See In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) ("more substantive arguments in an appeal brief [are
required] than a mere recitation of the claim elements and a naked assertion
that the corresponding elements were not found in the prior art.").
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of each particular supplier in tiers in the supply chain" (Ans. 28; see also
Final Act. 46 (citing Norrman, 445)), but acknowledges that Norrman does
not disclose a geographical map for display (Final Act. 46-4 7). To address
this deficiency, the Examiner relies on Meyer (see Meyer, Fig. 38b ). The
Examiner concludes:
[i]t would have been obvious to one of ordinary skill in the
art at the time of the invention to have modified the teachings of
Norrman to have included showing risk events on a map
including the proximity to assets, as taught by Meyer, because it
would have improved risk management by conveying the risk
event information in a geographic map so as to show spatial
considerations surrounding a supply chain risk event.
(Final Act. 48). Appellant has presented no persuasive argument or
technical reasoning to demonstrate that the Examiner's finding is
unreasonable or unsupported.
Thus, we sustain the Examiner's rejection of claims 8 and 18 under 35
U.S.C. § 103(a).
With respect to dependent claim 6, Appellant argues that the
combination of N orrman and Mamou fails to disclose or suggest "restricting
access to supply chain information outside each organization's supply
chain." We are not persuaded by Appellant's argument at least because
Mamou discloses user login to access its system (Mamou, 23 :40-45), and
further discloses that its system is capable of "tracking access, restricting
access, or the like, the user can invoke a security module 12600 as a service
in a services oriented architecture, so that the user does not have to create a
separate security facility for each data integration job or task." (id. at 85: 1-
6).
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Thus, we sustain the Examiner's rejection of claim 6 under 35 U.S.C.
§ 103(a).
Independent claim 24 and dependent claims 25-28 and 30---407
Appellant argues that independent claim 24 is patentable for reasons
similar to those set forth with respect to independent claim 29 (Br. 48). We
are not persuaded for the reasons set forth above that the Examiner erred in
rejecting independent claim 29 under 35 U.S.C. § 103(a). Therefore, we
sustain the rejection under 35 U.S.C. § 103(a) of independent claim 24 for
the same reasons. We also sustain the rejections of claims 25-28 and 30-40,
which depend from independent claim 24, and are not argued separately. 8
DECISION
The Examiner's rejection of claims 2 and 4--40 under 35 U.S.C. § 101
is affirmed.
The Examiner's rejections under 35 U.S.C. §103(a) are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
7 Appellant argues that claims are 30-44 patentable (see Br. 48). We take
this to be a typographical error intended to mean claims 30-40, as the only
claims pending are claims 2 and 4--40.
8 We acknowledge Appellant's reference to dependent claims 26 and 27 (see
Br. 49). However, the mere reference to claims does not rise to the level of a
separate argument for patentability. See In re Lovin, 652 F.3d at 1357.
25