Ex Parte FontanotDownload PDFPatent Trial and Appeal BoardSep 21, 201612701823 (P.T.A.B. Sep. 21, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121701,823 02/08/2010 27350 7590 09/23/2016 LERNER GREENBERG STEMER LLP Box SA P.O. BOX 2480 HOLLYWOOD, FL 33022-2480 FIRST NAMED INVENTOR Paolo Fontanot 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. 2009P01767 1844 EXAMINER LIN, JASON ART UNIT PAPER NUMBER 2121 NOTIFICATION DATE DELIVERY MODE 09/23/2016 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): boxsa@patentusa.com docket@patentusa.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte PAOLO FONTANOT Appeal2015-007128 Application 12/701,823 Technology Center 2100 Before LARRY J. HUME, LINZY T. McCARTNEY, and JOYCE CRAIG, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. Appeal2015-007128 Application 12/701,823 STATEMENT OF THE CASE The present patent application concerns "a method and a system for scheduling a manufacturing process planned by an Enterprise Resource Planning (ERP) and produced by equipment of a shop floor, wherein within a Manufacturing Executing System (MES) a production scheduler is provided to schedule tasks of the manufacturing process." Spec. i-f 3. Claim 1 illustrates the claimed subject matter: 1. A method of scheduling a manufacturing process planned by an enterprise resource planning and performed by equipment of a shop floor, wherein a production scheduler within a manufacturing executing system schedules tasks of the manufacturing process, the method which comprises the following steps: displaying a current production schedule by way of an interactive Gantt-chart; displaying in the interactive Gantt-chart for each piece of equipment of the shop floor time periods already scheduled and time periods still unscheduled; with a pointing device, selecting for a specific piece of equipment, one of the time periods still unscheduled being displayed on the interactive Gant chart; querying a production database for the specific piece of equipment to find at least one task that can be performed by the specific piece of equipment and that fits into the time period still unscheduled; and if a single task is found, scheduling the task, or if a plurality of tasks are found, scheduling at least one of the plurality of tasks, by way of a decision entered by a user interaction or by way of a decision determined automatically by a selection preference. 2 Appeal2015-007128 Application 12/701,823 REJECTIONS Claims 1-14 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Baird et al. (US 2007 /0094661 A 1; April 26, 2007), Chua et al. (US 2005/0154625 Al; July 14, 2005), Castellani et al. (US 2002/0077878 Al; June 20, 2002), Van Den Nieuwelaar et al. (US 2005/0102723 Al; May 12, 2005), and Zhang et al., "Self-Construction Production Scheduling System," Proc. of the 2006 IEEE Int'l Conf. on Automation Sci. & Engineering (2006). ANALYSIS We have reviewed the Examiner's rejection in light of Appellant's arguments, and we disagree with Appellant that the Examiner erred. Appellant has waived arguments Appellant failed to raise or properly develop in Appellant's briefing. See 37 C.F.R. § 41.41(b)(2). Appellant argues "Chua et al. would not have suggested modifying Baird et al. 's method for scheduling a personal or collaborative task to be the method defined by claim 1." Br. 9. According to Appellant, "Baird et al. are not in the slightest bit concerned with scheduling a manufacturing process planned by an enterprise resource planning and performed by equipment of a shop floor." Id. at 7, 10. Appellant asserts "[i]t would not have been predictable and therefore, it would not have been obvious to have incorporated a manufacturing process planned by an enterprise resource planning and performed by equipment of a shop floor into Baird et al. 's teaching of scheduling personal or collaborative tasks for members of an organization." Id. at 10. We find Appellant's arguments unpersuasive. Appellant's arguments largely rest on the fact that Baird's "goals do not include scheduling a 3 Appeal2015-007128 Application 12/701,823 manufacturing" as recited in the claims. Id. at 5. But "neither the particular motivation nor the avowed purpose of the [inventor] controls" an obviousness analysis. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). "The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain." In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983). Here, the Examiner found one of ordinary skill in the art would have been motivated to combine Chua's teachings with Baird's "to improve utilization by scheduling jobs for execution that are deemed to be best suited based on a set [of] rules." Final Act. 4--5 (citing Chua Abstract). Appellant's assertion that Baird is not concerned with scheduling a manufacturing process does not persuade us that the Examiner erred. In addition, Appellant has offered little in the way of persuasive evidence or reasoning to support the contention that the Examiner's combination of Chua's and Baird's teachings would not have been predictable. Appellant simply asserts that "it would have not have been predictable and therefore, it would not have been obvious" to combine Baird's and Chua's teachings because Baird teaches "scheduling personal or collaborative task for members of an organization." App. Br. 10. But as noted by the Examiner, Baird explicitly discloses that Baird's method of scheduling tasks applies to machines and devices. See Ans. 3; Baird i-f 24. Appellant has simply failed to adequately explain why the Examiner's combination of Baird's and Chua's teachings would not have been predictable. Accordingly, we find this argument unavailing. 4 Appeal2015-007128 Application 12/701,823 Appellant also contends the Examiner has not explained how or why one of ordinary skill in the art would have combined Baird's and Van Den Nieuwelaar's respective querying methods to obtain the "querying" step recited in claim 1. See Br. 11-13. Appellant argues Examiner's "motivation does not address the established functions of the respective steps of the two teachings." Id. (emphasis omitted); see also id. at 12. According to Appellant, it would not have been predictable to combine Van Den Nieuwelaar's querying method with Baird's querying method, given their respective established functions. Id. at 13. We find Appellant's arguments unpersuasive. As an initial matter, although the Examiner found Baird teaches querying to find a task that fits into an unscheduled period, the Examiner explicitly found the combination of Baird, Chua, Zhang, and Castellani does not disclose the "querying" step recited in claim 1. Final Act. 3, 6. However, the Examiner found Van Den Nieuwelaar remedies this deficiency. Id. at 6. Thus, contrary to Appellant's arguments, the Examiner did not find it would have been obvious to combine the "established functions" of Baird's and Van Den Nieuwelaar's querying methods. Rather, the Examiner found it would have been obvious to combine Van Den Nieuwellar' s query with other aspects of Baird, Chua, Zhang, and Castellani to arrive at the claimed invention. Even if Appellant were correct that the Examiner combined Baird's and Van Den Nieuwelaar's querying methods, Appellant's arguments suggest that one of ordinary skill in the art would have been forced to mechanically apply Baird's and Van Den Nieuwelaar's respective methods. But "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). 5 Appeal2015-007128 Application 12/701,823 There is no evidence that combining these querying steps to obtain the claimed "querying" step would have been "uniquely challenging or difficult for one of ordinary skill in the art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). And here, too, Appellant fails to provide persuasive evidence or reasoning that it would not have been predictable to combine Van Den Nieuwelaar's teachings with Baird's. We therefore see no reason to disturb the Examiner's rejection on these grounds. DECISION For the above reasons, we affirm the rejection of claims 1-14. 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 6 Copy with citationCopy as parenthetical citation