Ex Parte Dayan et al

Patent Trial and Appeal Board

Sep 6, 2016

12214882 (P.T.A.B. Sep. 6, 2016)

~,. .. ,,,,...
{ . . \. ~ UNITED ST A TES PA TENT AND TRADEMARK OFFICE •
:-""'~
~ ~
~.,,..,eo~
APPLICATION NO. FILING DATE
121214,882 06/24/2008
80140 7590
Eliahou Dayan
Ha'Koukia Street 13/1
Rishon Letzion, 75548
ISRAEL
09/06/2016
FIRST NAMED INVENTOR
Hilla Dayan
UNITED STA TES 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.
4192
EXAMINER
PEACHER, LORENA R
ART UNIT PAPER NUMBER
3623
MAILDATE DELIVERY MODE
09/06/2016 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HILLA DAYAN and ELIAHOU DAYAN
____________

Appeal 2014-005809
Application 12/214,882
Technology Center 3600
____________

Before HUBERT C. LORIN, BIBHU R. MOHANTY, and
BRADLEY B. BAYAT, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

The Appellants seek our review under 35 U.S.C. § 134 of the
non-final rejection of claims 5–31 which are all the claims pending in the
application1. We have jurisdiction under 35 U.S.C. § 6(b).

1 We note that the Appeal Brief filed March 5, 2013 contains two sets of
claims in the Claims Appendix, neither of which has been entered by the
Examiner. In the Examiner’s Answer of Oct. 30, 2013, the Examiner states
that the rejection is based on the claims submitted with the Appeal Brief of
Feb. 21, the rejection of record at issue is based Feb. 21, 2012 claim set (the
citation of Feb. 12, 2012 cited in that Answer at page 3 is considered a
typographical error).
Appeal 2014-005809
Application 12/214,882

2

SUMMARY OF THE DECISION
We AFFIRM.

THE INVENTION
The Appellants’ claimed invention is directed to software for planning
projects and calculating the number of workers needed (Spec., 1). Claim 5,
reproduced below, is illustrative of the subject matter on appeal.

5. A manpower control planning apparatus, comprising:
an available apparatus including memory unit, seven electronic
data collecting pages wherein each page includes
a. an electronic data collecting plain sheet of 12 columns
by 15 rows,
b. an electronic column of 15 vertical empty cells
designated for entering projects names,
c. an electronic column of 15 vertical empty cells
designated for entering projects total hours of
completion,
d. an electronic column of 15 vertical empty cells
designated for entering projects begin dates,
e. an electronic column of 15 vertical empty cells
designated for entering projects finish dates,
f. an electronic empty cell designated for entering either
today's date or any other desired date from now up to
seven years ahead,
g. an electronic button named start date to activate
dispersal of data, and
h. 12 horizontal electronic empty cells designated for
entering present headcounts of a firm;
a computer program, a keyboard and a mouse to feed in data,
and storing information unit which stores monthly planned
Appeal 2014-005809
Application 12/214,882

3

hourly of projects that are presently in process, or contracted to
be brought into process in later time, or delayed, or splitted, and
or cancelled in the business firm;
further, this manpower control planning apparatus comprising:
computer processing unit and memory unit and providing an
electronic plain sheet containing several empty cells to collect
projects learning curves formulas in order to evaluate working
hours for projects of the same nature.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Crockett
Konicek
Fernandez
US 5,325,292
US 2004/0049369 A1
US 7,962,358 B1
June 28, 1994
Mar. 11, 2004
June 14, 2011

Martin et al., Mastering Excel 2000 Premium Edition, SYBEX, Inc.
(1999) (Hereinafter “Martin”).
The Learning Curve Spreadsheet - Learning Curve Theory
http:l/web.archive.org/web/20070806014731 /http://www.businessanalysis-
made-easy.com/Learning-Curve-Spreadsheet.html> (last visited August 6,
2007) (Hereinafter “Stellar Force”).
Ozcan and Hornby, Determining Hospital Workforce requirements:
A case study, Human Resources for Health Development Journal, vol. 3, no.
3, April 2005 (Hereinafter “Ozcan”).

The following rejections are before us for review:
1. Claims 14–31 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point out and
Appeal 2014-005809
Application 12/214,882

4

distinctly claim the subject matter which the Appellants regard as the
invention.
2. Claims 5–19, 23–26, and 30 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Fernandez, Martin, and Stellar Force.
3. Claims 20, 27, and 31 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Fernandez, Martin, Stellar Force, and Konicek.
4. Claims 21 and 28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fernandez, Martin, Stellar Force, and Crockett.
5. Claims 22 and 29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fernandez, Martin, Stellar Force, and Ozcan.

FINDINGS OF FACT
We have determined that the findings of fact in the Analysis section
below are supported at least by a preponderance of the evidence2.

ANALYSIS
Rejections under 35 U.S.C. § 112, second paragraph
The Examiner has first determined that claim 14 is indefinite because
“it is unclear as to what applicant is attempting claim (e.g. a report form)”
(Ans. 4–5).
The Appellants have not provided any arguments for this rejection of
claim 14, stating that the claims “are timely rephrased to eliminate
awkwardness” (Br. 26).

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 2014-005809
Application 12/214,882

5

Therefore, the rejection of claim 14 is summarily sustained, as are the
rejections of dependent claims 15–31.
The Examiner has secondly also determined that the limitation
“divided by 170 hours per worker per month or 8.5 hours per worker per
day” in claims 20 and 27 is indefinite (Id.) (emphasis original), but this is an
issue of claim breadth and not indefiniteness. Here, one of ordinary skill in
the art would understand what is claimed when the claims are read in light of
the Specification, so this separate grounds is not sustained. However, as
noted above, the rejection of these claims on the first grounds addressed
above has been sustained

Rejections under 35 U.S.C. § 103(a)
Claims 5–13
The Appellants argue that the rejection of claims 5–13 under
35 U.S.C. § 103(a) is improper (Br. 16–23; 26–45).
In contrast, the Examiner has determined that the rejection of claims
5–13 is proper (Ans. 6–15; 32–35).
We agree with the Examiner. We have reviewed the rejection of
record in the Answer at pages 6–15, and agree with, and adopt, the facts and
reasons articulated for the combination to be determined to have been
obvious. Here, Martin has disclosed using a well-known spreadsheet,
Fernandez has disclosed using a project and staffing management system,
and Stellar Force has disclosed learning curve formulas as identified in the
rejection of record. The combination of these teachings set forth in the
rejection to meet the requirements of the claim is well reasoned and we
agree that the cited combination would have been obvious. Any use of
Appeal 2014-005809
Application 12/214,882

6

particular columns, rows, or data periods to be used in the combination
would have been obvious to modify based on the particular project at hand.
We also note that any data entered into the empty cells of claim 5 (e.g., by a
user of the claimed apparatus) would be mere data and non-functional
descriptive material and not accorded patentable weight.
The Appellants argue that the cited prior art does not disclose
“dispersing non-homogeneous sets of data over a time interval” (Br. 16–23;
31–32). The Appellants contend that non-homogenous dispersion of input
hours is required by the claims and that Fernandez does not meet this
requirement because the hours in Fernandez are homogenously distributed
(id.). According to the Appellants, “[t]he recited terms ‘delayed’, and
‘splitted’ firmly confirm the existence of non-homogeneous input hours
dispersion functionality” and “[t]herefore, this limitation from specification
has been read into claim 5” (Br. 16). The Appellants state that “[t]he effects
of these conditions which are monthly dispersed nonhomogeneous input
hours have been depicted in Evidence App., amended Spec. Form 1, Form 2,
homogeneous dispersion (before) Form 1A, and Form 2A non-homogeneous
dispersion for projects number 5 and 7” (Br. 18).
We decline the Appellants’ invitation to incorporate non-homogenous
dispersion of input hours from the Evidence Appendix into the claims.
Regarding the Appellants’ argument that this much is required by the claim
terms “delayed” and “splitted,” claim 5 recites these terms as optional
alternatives in a disjunctive list of optional alternatives, none of which is
individually required by the claim. The only reference to dispersion
functionality in claim 5 is “an electronic button named start date to activate
dispersal of data.” Thus the Appellants’ arguments are not commensurate
Appeal 2014-005809
Application 12/214,882

7

with the scope of the claims. The Appellants also argue that in Fernandez,
“project input hours can be modified” and that “in this disclosure a project
input hours can not be modified in any way since it has been contracted with
customer” (Br. 20). Nothing in the claims excludes a system that allows
input hours to be modified, and here again the Appellants’ arguments are not
commensurate with the scope of the claims.
The Examiner makes detailed findings for every limitation of the
claims (Ans. 6–15). As stated above, we have reviewed the rejection of
record in the Answer at pages 6–15 and agree with and adopt the reasons
articulated for the combination to be determined to have been obvious.
With regard to claims 6-10, 12, and 13, the use of a memory unit has
been shown in the prior art and is a conventional use in computer systems.
As stated above in regard to claim 5, the use of particular columns,
rows, or data periods to be used in the combination as recited in claims 10
and 11 would have been obvious to modify based on the particular project at
hand.
For these above reasons the rejection of claims 5–13 is sustained.

Claims 14–31
The rejections of claims 14–31 under 35 U.S.C. § 103(a) must fall pro
forma because they are necessarily based on a speculative assumption as to
the scope of these claims. See In re Steele, 305 F.2d 859, 862-63 (CCPA
1962). Our decision as to claims 14–31 is based solely on the indefiniteness
of the claims.

Appeal 2014-005809
Application 12/214,882

8

CONCLUSIONS OF LAW
We conclude that the Appellants have not shown that the Examiner
erred in rejecting claims 14–31 under 35 U.S.C. § 112.
We conclude that the Appellants have not shown that the Examiner
erred in rejecting claims 5–13 under 35 U.S.C. § 103(a).
The rejections of claims 14–31 made under 35 U.S.C. § 103(a) fall
pro forma as their scope cannot be ascertained.

DECISION
The Examiner’s decision to reject claims 5–31 is 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). See 37 C.F.R.
1.136(a)(1)(iv).

AFFIRMED