Ex Parte Buczkowski et alDownload PDFPatent Trial and Appeal BoardSep 30, 201612470750 (P.T.A.B. Sep. 30, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/470,750 0512212009 63652 7590 10/04/2016 DISNEY ENTERPRISES, INC. c/o Marsh Fischmann & Breyfogle LLP 8055 East Tufts A venue Suite 450 Denver, CO 80237 FIRST NAMED INVENTOR Peter S. Buczkowski 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. 08-DIS-231-PR-US-UTL 4493 EXAMINER SHEIKH, ASFAND M ART UNIT PAPER NUMBER 3627 NOTIFICATION DATE DELIVERY MODE 10/04/2016 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): PTOMail@mfblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PETER S. BUCZKOWSKI, DOUGLAS C. LORD, FRANK J. TORTORICI JR., KURT G. KAUFMANN, JOSE A. MOLA, GARY N. SIMMONS, and KATHLEEN A. KILMER Appeal2016-001514 Application 12/470,750 Technology Center 3600 Before HUBERT C. LORIN, BIBHU R. MOHANTY, and BRADLEY B. BAY AT, Administrative Patent Judges. BAY AT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's final rejection of claims 1-3, 5-12, 14, 15, and 17-26. We have jurisdiction under 35 U.S.C. § 6(b ). 1 Appellants identify the real party in interest as "Disney Enterprises, Inc." (Appeal Br. 1, filed May 21, 2015). Appeal 2016-001514 Application 12/470,750 STATEMENT OF THE DECISION We AFFIRM but denominate the affirmed rejection as a NEW GROUND OF REJECTION. CLAIMED INVENTION The claimed invention relates to "dynamic bus dispatching and labor assignments to react to changes in demand, traffic patterns, and business conditions on an ongoing and real time basis" (Spec. para. 2). Claims 1, 9, and 15 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal (Appeal Br. 27, Claims App.). 1. A method of performing dynamic passenger-transport vehicle dispatching and dynamic labor assignments, comprising: running a transportation services module with a processor on a computer system; at the computer system, receiving current location information for a plurality of vehicles adapted for carrymg passengers; with the transportation services module, determining a route completion time period for each of the vehicles; and with the transportation service module, generating a dispatch schedule for each of the vehicles based on the route completion time periods, wherein the generating of the dispatch schedule further comprises determining service intervals for the routes serviced by the vehicles based on the received current location information, the dispatch schedule being modified based on a comparison of the determined service intervals and a set of predefined goal service intervals for the routes, wherein the set of predefined goal service intervals include maximum targeted wait times and ideal wait times at a number of passenger pickup locations for the route, and 2 Appeal 2016-001514 Application 12/470,750 wherein the comparison indicates a passenger wait time at one of the passenger pickup locations is less than the ideal wait time or is greater than the maximum targeted wait time. REJECTION Claims 1-3, 5-12, 14, 15, and 17-26 stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. ANALYSIS We begin by making a few observations. The Examiner determined that "[t]he claim(s) is/are directed to the abstract idea of certain methods of organizing human activities" (Final Action 3, mailed Feb. 25, 2015). The Examiner also determined that "additional claim element( s) do not provide meaningful limitation( s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim( s) amounts to significantly more than the abstract idea itself' (id.). 2 There is no analysis. The Final Rejection was mailed on 2 The body of the rejection in its entirety reads as follows: The claimed invention is directed to non-statutory subject matter because the claim( s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. The claim(s) is/are directed to the abstract idea of certain methods of organizing human activities. The additional element( s) or combination of elements in the claim( s) other than the abstract idea per se amount(s) to no more than: (i) mere instructions to implement the idea on a computer, and/or (ii) recitation of generic computer structure that serves to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry. Viewed as a whole, these additional claim element( s) do not provide meaningful limitation( s) to transform the abstract idea into a patent eligible application of the 3 Appeal 2016-001514 Application 12/470,750 Feb. 25, 2015, after the issuance of the 2014 Interim Eligibility Guidance on Patent Subject Matter Eligibility that provides guidance on the type of analysis that should be provided. Because the analysis is inadequate to support the conclusion, there is a question as to whether the Examiner made a case that the claimed subject matter is patent-ineligible in the first instance. Cf In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992), "the examiner bears the initial burden ... of presenting a prima facie case of unpatentability ... " We have taken note of the extensive supplemental discussion presented (for the first time) in the Answer. And still, even though the framework set forth in the 2014 Interim Eligibility Guidance on Patent Subject Matter Eligibility (Answer 3---6, mailed Oct. 27, 2015) is ostensibly applied, a number of claim limitations recited in the independent claims remain unaddressed as outlined in the Appeal Brief. Nevertheless, we agree with the Examiner's assessment that the claimed subject matter is not patent-eligible. Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S. Ct. 2347 (2014), identifies a two-step framework for determining whether claimed subject matter is judicially-excepted from patent eligibility under § 101. According to Alice step one, "[ w ]e must first determine whether the claims at issue are directed to a patent-ineligible concept," such as an abstract idea. Alice, 134 S. Ct. at 2355. Taking claim 1 as representative of the claims on appeal, the claimed subject matter is directed to dispatch scheduling. Dispatch scheduling is a abstract idea such that the claim( s) amounts to significantly more than the abstract idea itself. Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. 4 Appeal 2016-001514 Application 12/470,750 well-known fundamental economic practice. As such, it is directed to an abstract idea. Step two is "a search for an 'inventive concept' - i.e., an element or combination of elements that is 'sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself."' Id. In that regard, we see nothing in the subject matter claimed that transforms the abstract idea of dispatch scheduling into an inventive concept. Claim 1 describes a specific application of dispatch scheduling to buses. The dispatch scheduling of buses of claim 1 takes into account their "route completion time periods," "service intervals for the routes serviced by the vehicles based on the received current location information," and "[a] set of predefined goal service intervals [that] include maximum targeted wait times and ideal wait times at a number of passenger pickup locations for the route." Each of these characterize known variables in efficiently managing a bus transport system. The abstract idea of dispatch scheduling is not meaningfully transformed by applying it to buses and taking into account known variables in efficiently managing a bus transport system using generic computer components. Thus, the rejection of claims 1-3, 5-12, 14, 15, and 17-26under35 U.S.C. § 101 is sustained, albeit denominated as a new ground of rejection given that it departs significantly from the thrust of the Examiner's position. 5 Appeal 2016-001514 Application 12/470,750 DECISION The decision of the Examiner to reject claims 1-3, 5-12, 14, 15, and 17-26 is affirmed but the affirmed rejections under § 101 is denominated as new grounds of rejection. NEW GROUND This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the exammer .... (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record .... No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED; 37 C.F.R. § 41.50(b) 6 Copy with citationCopy as parenthetical citation