Ex Parte Friedlander et alDownload PDFPatent Trial and Appeal BoardOct 30, 201411516953 (P.T.A.B. Oct. 30, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ___________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ___________ Ex parte ROBERT R. FRIEDLANDER, RICHARD A. HENNESSY, ANWER MUJAHID KHAN, and JAMES R. KRAEMER ___________ Appeal 2012-002480 Application 11/516,953 Technology Center 3600 ___________ Before HUBERT C. LORIN, ANTON W. FETTING, and MICHAEL W. KIM, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Robert R. Friedlander, Richard A. Hennessy, Anwer Mujahid Khan, And James R. Kraemer (Appellants) seek review under 35 U.S.C. § 134 of a final rejection of claims 1-20, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed June 17, 2011) and Reply Brief (“Reply Br.,” filed November 17, 2011), and the Examiner’s Answer (“Ans.,” mailed September 27, 2011), and Final Rejection (“Final Rej.,” mailed February 3, 2011). Appeal 2012-002480 Application 11/516,953 2 The Appellants assert an invention of a method, apparatus, and computer code for finding expert services in times of chaos. (Spec. ¶ 1). An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below [bracketed matter and some paragraphing added]. 1. A computer implemented method for finding skills and resources for a chaotic event, the method comprising the following steps implemented by a processor working with a storage medium: [1] organizing skills data for the chaotic event; [2] responsive to receiving an identification of the skills and the resources required to manage the chaotic event, determining whether the skills and the resources are available; [3] optimizing the skills and the resources based on requirements and constraints, potential skills, and enabling resources to form optimized skills and optimized resources; [4] verifying availability of the optimized skills and the optimized resources to confirm that the optimized skills and optimized resources selected by optimizing remain available; and [5] responsive to a determination that the optimized skills and the optimized resources are unavailable, reoptimizing the optimized skills and the optimized resources. Appeal 2012-002480 Application 11/516,953 3 The Examiner relies upon the following prior art: Katz US 2002/0178077 A1 Nov. 28, 2002 McCord US 2004/0083195 A1 Apr. 29, 2004 Dilbeck US 6,937,147 B2 Aug. 30, 2005 Hodgin US 2007/0033095 A1 Feb. 8, 2007 Aykin US 7,725,339 B1 May 25, 2010 Claims 1–4, 6, 8–15 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCord and Hodgin. Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Katz. Claim 7 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Aykin. Claims 16–18 and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Dilbeck. Claim 19 stands rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, Dilbeck, and Katz. ISSUES The issue of obviousness for claim 1turns primarily on whether McCord discloses reoptimizing. The issue of obviousness for claims 5 and 19 turns on whether Katz is analogous art. The issue of obviousness of claim 7 turns on whether McCord and Aykin disclose optimizing using an objective function of cost. Appeal 2012-002480 Application 11/516,953 4 The issue of obviousness of claim 20 turns on whether McCord discloses searching using the meanings of skills data. FACTS PERTINENT TO THE ISSUES The following enumerated Findings of Fact (FF) are believed to be supported by a preponderance of the evidence. Facts Related to Claim Construction 01. The disclosure contains no lexicographic definition of “verify.” 02. The ordinary and customary definition of the term “verify,” as defined by Merriam Webster’s Collegiate Dictionary (10th ed. 2004), is: “to establish the truth, accuracy, or reality of.” 03. The disclosure contains no lexicographic definition of “potential skills.” 04. The disclosure contains no lexicographic definition of “semantic data.” 05. The ordinary and customary definition of the term “semantic,” as defined by Merriam Webster’s Collegiate Dictionary (10th ed. 2004), is: “of or relating to meaning in language.” Facts Related to Appellants’ Disclosure 06. The Specification describes “optimizing” as “process of finding a solution that is the best fit based on the available resources and specified constraints.” (Spec. ¶ 29). Appeal 2012-002480 Application 11/516,953 5 07. The Specification further describes “optimization” in that “[o]ptimization routines 324 is a process for maximizing an objective function by systematically choosing the values of real or integer variables from within an allowed set.” (Spec. ¶ 46). 08. The Specification describes re-optimization, stating “[i]f the process determines the expert sources are not available in step 812, the process optimizes expert resources (step 808).” (Spec. ¶ 90). 09. The flow chart in Figure 8, a portion of which follows, illustrates the flow when skills are not available, which involves returning to the “optimization” step: A portion of Figure 8, showing return to step 808 to optimize when resources are not available. 10. The Specification describes “potential skills” as follows: “Potential skills 328 specify the potential expert skills of individuals that may be available.” (Spec. ¶ 52). Appeal 2012-002480 Application 11/516,953 6 Facts Related to the Prior Art McCord 11. McCord is directed to automated discovery in real-time of skills available. (McCord ¶ 2). 12. McCord discloses its “system ‘knows’ exactly what agent resources are currently available and unavailable.” (McCord ¶ 162). 13. McCord discloses maintaining in “real time” the current state of use of skills resources. (McCord ¶ 221). 14. McCord discloses monitoring state information related to skills, and “current availability states of those skills are accessed.” (McCord ¶ 233). 15. McCord discloses “[a]vailability of each skill presented is denoted by dynamic state information that can change according to use of the particular skill.” (McCord ¶ 264). 16. McCord disclose optimizing and re-optimizing, in that: . . . a target access point is found that has all of the skills required and is the best match for the request according to skills available wherein the skill level of the access point is rated according to a score in comparison to the other considered access points by a skills presence calculator. In this embodiment a backup access point having a score that reflects a “next best match” may be selected as well and held in reserve in case of failure to connect with the primary access point. (McCord ¶ 266). Appeal 2012-002480 Application 11/516,953 7 17. McCord discloses storing skill records in a database. (McCord ¶ 62–63). 18. McCord discloses use of an “algorithm to produce scores used for isolation of a best skill set for processing the interaction according to the skills required by the interaction.” (McCord ¶ 24). 19. McCord discloses “skills data includes access definition types defining host access capabilities of human-served resources, system-served resources, and media-based resources.” (McCord ¶ 32). Hodgin 20. Hodgin is directed to disseminating information necessary to respond to time-constrained emergency events or hazardous situations. (Hodgin ¶ 4). 21. Hodgin discloses the use of a relational database system. (Hodgin ¶ 13). 22. Hodgin discloses event type as a type of data with which it organizes information, at element 204 in Figure 8. (Hodgin ¶ 46). Katz 23. Katz is directed to a system to improve the efficiency of procurement professionals in a supply chain. (Katz ¶ 11). Aykin 24. Aykin is directed to optimal scheduling of agents with multiple skills to satisfy staffing requirements. (Aykin, col. 1, ll. 38–43). Appeal 2012-002480 Application 11/516,953 8 Dilbeck 25. Dilbeck is directed to a system for the organization, notification, and deployment of resources for responding to emergency situations. (Dilbeck, col. 1, ll. 8–11). ANALYSIS Claims 1, 2, 4, 6, and 8–11 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord and Hodgin We are not persuaded by the Appellants’ argument that McCord fails to disclose “verifying availability of the optimized skills,” because “[v]erifying is not the same as knowing on an updated basis . . . .” (App. Br. 16). Examiner finds that the “verifying” limitation [4] is disclosed in paragraphs 162, 221, 233, 264, and 265 of McCord. (Ans. 7–8). The Appellants contend that maintaining the current state of availability of skills is not the same as verifying, because in McCord “there is no guarantee that the reported current state has actually been verified.” (Reply Br. 3). There is no claim requirement that recites the need for an additional “guarantee.” The claim term “verifying” is not defined in Appellants’ disclosure (FF 01). We rely on the ordinary and customary meaning, “to establish the truth, accuracy, or reality of.” (FF 02). McCord discloses knowing which skills resources are available (FF 12), in “real time” (FF 13), so that currently available and unavailable resources can be accessed (FF 14), as those skills availabilities dynamically change (FF 15). McCord thus discloses one manner of verifying availability, by knowing in real-time Appeal 2012-002480 Application 11/516,953 9 which of the dynamically changing skills are available, to establish the truth, accuracy, or reality of skills availability, that is within the scope of the claim. We are not persuaded by the Appellants’ argument that McCord discloses only an initial optimization process, not a re-optimization, because McCord’s “next best match” is only an alternative of the original calculation, not an actual re-optimization of previously optimized results. (App. Br. 17; see also Reply Br. 4–6). The Specification describes “optimization” as a process for “finding a solution that is the best fit.” (FF06). The Specification also describes that “optimization” is a process for “maximizing an objective function by systematically choosing the values of real or integer variables from within an allowed set.” (FF 07). This indicates that optimization may be performed by a selection process to choose the best fit. Reoptimization is described as returning to the optimization step (FF 08,09). When an initial “best fit” solution is determined to involve skills that are unavailable, reoptimization may involve selecting again to find another best fit solution. McCord discloses optimizing by selecting a best-fit solution, and also re-optimizing by setting aside a “next best fit” solution in case the best-fit solution is not available. (FF16). Thus, McCord discloses “reoptimizing” as claimed. We are not persuaded by the Appellants’ argument that McCord fails to disclose optimizing based on “potential skills,” as claimed. Examiner finds “potential skills” in McCord as “skills not necessarily considered current or traditional skill sets” (Ans. 7), and “optional skills” (Ans. 32). The Appellants contend the first meaning is “not the same” as “potential skills” Appeal 2012-002480 Application 11/516,953 10 and facially not equivalent to “potential skills.” (App. Br. 18). The Appellants also contend optional skills in McCord are “not ‘potential’” because they are “still there.” (Reply Br. 7). The Specification does not define the term “potential skills” (FF 03), and describes potential skills as skills “that may be available.” (FF10). In determining if the prior art discloses the claims, identity of terminology is not required: anticipation is not an ipsissimus verbis test. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). The Appellants have not explained reasons that Examiner’s findings are “not the same” as the meaning of the claim term, so we accept the Examiner’s construction and findings as our own, and agree that McCord discloses optimizing based on “potential skills.” The Appellants also argue, concerning claim 3 in the Appeal Brief and concerning claim 5 in the Reply Brief, that the combination of McCord and Hodgin, made in claim 1, is improper, because it does not involve a substitution of parts, because the ordinary artisan would lack to technical skill to make the combination, and because the reason for the combination is conclusory. (App. Br. 19–21, Reply Br. 11–13). The Examiner finds that McCord discloses the steps of the method, but fails to disclose applying those steps to a “chaotic” situation, which is disclosed in Hodgin. (Ans. 8–9). The Examiner concludes that it would have been obvious to combine McCord and Hodgin, so that McCord’s approach to “crisis issues” could be applied to Hodgin’s “emergency event,” (Ans. 9), because crisis issues and emergency events were known, and the technical ability to substitute data of one type with that of another existed at Appeal 2012-002480 Application 11/516,953 11 the time of the invention, and that the results would be predictable. (Id.). We agree with the Examiner. First, the broadest reasonable interpretation of the claimed “chaotic event” encompasses both the “crisis issues” and the “emergency event” of the prior art. Second, merely substituting one type of data for another in a database, which leads to predictable results, is an obvious modification. A prima facie conclusion of obviousness may be supported by a showing that the claims are directed to a process, machine, manufacture, or composition of matter already known in the prior art that is altered by the mere substitution of one element for another known in the field, and such modification yields a predictable result. KSR International Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (citing United States v. Adams, 383 U.S. 39, 40 (1966)). For these reasons, we affirm the rejection of claim 1, and dependent claims 2, 4, 6, 8–11, that were not separately argued. Claim 3 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord and Hodgin Dependent claim 3 recites “organizing the skills data in a skills database, wherein the skills data is organized based on an event type of the chaotic event.” We are not persuaded by the Appellants’ argument that McCord fails to disclose organizing skills data based on “event type.” McCord discloses maintaining a database of skills (FF17), and Hodgin discloses storing data in a relational database (FF21). One of ordinary skill in the art would Appeal 2012-002480 Application 11/516,953 12 recognize that data stored in a relational database may be considered to be organized by any field which may be sorted. Hodgin discloses a column of data labeled “event” that reflects event types. (FF22). Therefore, we infer that the combination of McCord and Hodgin organizes skills data by event type. For this reason, we affirm the rejection of claim 3. Claim 5 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Katz Dependent claim 5 recites “predicting timing and severity of the chaotic event to determine the skills and the resources required and quantities of the skills and the resources.” We are persuaded by the Appellants’ argument that Katz is non- analogous art to the claimed invention, because Katz is not from the same field of endeavor as the claimed invention, and because Katz has nothing to do with finding skills and resources for a chaotic event. (App. Br. 23and 26). For this reason, we find the rejection improper. Appeal 2012-002480 Application 11/516,953 13 Claim 7 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Aykin Dependent claim 7 recites optimizing an objective function, where the function is a cost function. We are not persuaded by the Appellants’ argument that Aykin is non- analogous art (App. Br. 29–30), because both the claimed invention and Aykin address common problems assigning skilled resources to address a situation. (FF24). We are not persuaded by the Appellants’ argument that the combination fails to disclose an objective function, because Aykin allegedly does not disclose the specifically-claimed formula of claim 7. (App. Br. 32; see also Reply Br. 13). Initially, we find that the formula recited in claim 7 is definitional. The formula in claim 7 defines what optimization of values in the real space domain means. As such, all optimization implementations in real space are tautologically within the scope of the claim 7 formula. The Examiner found that McCord described the use of optimization, but did not describe specific implementations. This is hardly surprising as optimization algorithms are so widely known there is little need to identify them unless the implementation is an issue. Hence the Examiner’s reliance on Aykin to show implementation forms. The Examiner did not rely on Aykin for its specific implementation, but only to describe the generic attributes of all such implementations, and particularly those such as linear programming that apply values in the real space domain, which would therefore inherently apply to any used to implement McCord. Appeal 2012-002480 Application 11/516,953 14 McCord discloses a scoring algorithm to find a “best” solution. (FF 18). McCord further explains its “best match” is a based on comparison of skills scores. (FF16). McCord therefore maximizes a cost function using numeric scores, because addressing the problem with the best possible combination of skills leads to a better outcome, with costs reduced from having inadequate skills. Aykin is analogous to the extent it describes linear programming techniques that are conventionally used in optimization algorithms. Once it is established that linear programming is among McCord’s optimization implementations, the remainder of claim 7 becomes inherent as a matter of linear programming definition. In particular, the constraints of linear programming are conventionally referred to as costs. It is noted that costs are not defined as such and in particular are not limited to monetary costs. In the field of operations research costs are simply constraints that optimization functions must be subjected to. That is such constraints are the costs incurred to achieve the objective function. Claims 12–15 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord and Hodgin We find no arguments in the Appeal Brief or Reply Brief specifically directed to system claims 12–15, either directly or by reference. Therefore, we affirm pro forma the rejection of these claims under 35 U.S.C. § 103(a). Appeal 2012-002480 Application 11/516,953 15 Claims 16–18 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Dilbeck Independent claim 16, and dependent claims 17 and 18, are argued only by reference to the arguments directed to claim 1. (App. Br. 33). We thus affirm the rejection for the same reasons as for claim 1. Claim 20 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, Dilbeck, and Katz Dependent claim 20 recites “querying based on discrete data and semantic data for finding the skills and the resources for the chaotic event.” We are not persuaded by the Appellants’ argument that the combination fails to disclose the limitations of claim 20, because none of the references use the term “semantic data.” (App. Br. 34). Identity of terminology is not required. In re Bond, at 832. “Semantic data” is not defined by the Appellants (FF 04), so we rely on the ordinary and customary meaning, of being directed to the “meanings” of words. (FF05). McCord disclosing skills data in a database (FF17) and that the nature of the data defines capabilities (FF19). One of ordinary skill in the art would recognize that the skills data in McCord is being handled based on the meanings of words, not on mere matches of data. Claim 19 rejected under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, Dilbeck, and Katz Claim 19 is argued only by reference to the arguments of claim 5. (App. Br. 34). We find the rejection improper for the same reasons as for claim 5. Appeal 2012-002480 Application 11/516,953 16 CONCLUSIONS OF LAW The rejection of claims 1–4, 6, and 8–15 under 35 U.S.C. § 103(a) as unpatentable over McCord and Hodgin is proper. 2 The rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Katz is improper. The rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Aykin is proper. The rejection of claims 16–18 and 20 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Dilbeck is proper. The rejection of claim 19 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, Dilbeck, and Katz is improper. DECISION The rejections of claims 1–4, 6–18, and 20 are affirmed. The rejections of claims 5 and 19 are reversed. To summarize, our decision is as follows. The rejection of claims 1–4, 6, 8–15 under 35 U.S.C. § 103(a) as unpatentable over McCord and Hodgin is sustained. 2 Should there be further prosecution of this application (including any review for allowance), the Examiner may wish to review the claims for compliance under 35 U.S.C. § 101 in light of the recently issued preliminary examination instructions on patent eligible subject matter. See “Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank International, et al.,” Memorandum to the Examining Corps, June 25, 2014. Appeal 2012-002480 Application 11/516,953 17 The rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Katz is reversed. The rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Aykin is sustained. The rejection of claims 16–18 and 20 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, and Dilbeck is sustained. The rejection of claim 19 under 35 U.S.C. § 103(a) as unpatentable over McCord, Hodgin, Dilbeck, and Katz is reversed. AFFIRMED-IN-PART Ssc Copy with citationCopy as parenthetical citation