Ex Parte Heler

Board of Patent Appeals and Interferences

Sep 29, 2004

09425748 (B.P.A.I. Sep. 29, 2004)

-1-
The opinion in support of the decision being entered
today was not written for publication and is not
binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte JEAN-JACQUES HELER
________________
Appeal No. 2003-1581
Application 09/425,748
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ON BRIEF
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Before JERRY SMITH, GROSS and SAADAT, Administrative Patent
Judges.
JERRY SMITH, Administrative Patent Judge.
DECISION ON APPEAL

This is a decision on the appeal under 35 U.S.C. § 134
from the examiner’s rejection of claims 1-20, which constitute
all the claims in the application.
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Application 09/425,748
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The disclosed invention pertains to a method and
apparatus for identifying a status of a system by identifying a
trend based on queue waiting periods.
Representative claim 1 is reproduced as follows:
1. A method of identifying a status of a system,
comprising:
computing a plurality of first queue waiting periods,
each related to an amount of time at least one request waits for
service;
identifying a trend responsive to at least two of the
plurality of first queue waiting periods; and
providing the status responsive to the trend identified
and at least one of the plurality of first queue waiting periods
computed.
The examiner relies on the following reference:
Shtivelman 6,157,655 Dec. 05, 2000
(filed Dec. 11, 1998)
Claims 1-20 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by the disclosure of Shtivelman.
Rather than repeat the arguments of appellant or the
examiner, we make reference to the briefs and the answer for the
respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejection advanced by the examiner and the evidence
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Application 09/425,748
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of anticipation relied upon by the examiner as support for the
rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellant’s
arguments set forth in the briefs along with the examiner’s
rationale in support of the rejection and arguments in rebuttal
set forth in the examiner’s answer.
It is our view, after consideration of the record before
us, that the disclosure of Shtivelman does not fully meet the
invention as set forth in claims 1-20. Accordingly, we reverse.
Appellants have indicated that for purposes of this
appeal the claims will all stand or fall together as a single
group [brief, page 6]. Consistent with this indication appellant
has made no separate arguments with respect to any of the claims
on appeal. Accordingly, all the claims before us will stand or
fall together. Note In re King, 801 F.2d 1324, 1325, 231 USPQ
136, 137 (Fed. Cir. 1986); In re Sernaker, 702 F.2d 989, 991, 217
USPQ 1, 3 (Fed. Cir. 1983). Therefore, we will consider the
rejection against independent claim 1 as representative of all
the claims on appeal.
Anticipation is established only when a single prior art
reference discloses, expressly or under the principles of
inherency, each and every element of a claimed invention as well
Appeal No. 2003-1581
Application 09/425,748
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as disclosing structure which is capable of performing the
recited functional limitations. RCA Corp. v. Applied Digital
Data Systems, Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed.
Cir.); cert. dismissed, 468 U.S. 1228 (1984); W.L. Gore and
Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1554, 220 USPQ
303, 313 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984).
The examiner has indicated how he finds the invention of
claim 1 to be fully met by the disclosure of Shtivelman [answer,
page 3]. Appellant argues that the examiner has improperly
relied on a second reference to establish that claimed features
are inherently obvious. Appellant also argues that the examiner
has improperly relied on the principle of inherency because the
claimed feature is not necessarily present in the applied
reference. Appellant argues that there is no teaching in
Shtivelman of identifying a trend or providing a status
responsive to that trend [brief, pages 6-12].
The examiner responds that he is only relying on
Shtivelman to support the rejection. The examiner asserts that
the broadest reasonable interpretation of the term “trend”
includes historical patterns as taught by Shtivelman. The
examiner also asserts that the dictionary definition of trend
demonstrates that Shtivelman anticipates “the use and necessity
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Application 09/425,748
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of trend analysis.” The examiner asserts that trend analysis is
an integral functionality of optimizing a call-waiting queue
system [answer, pages 5-15 with correct pagination].
Appellant responds that patterns are not trends and that
trend identification does not include pattern analysis.
Appellant repeats his basic position that identifying a trend is
not disclosed in Shtivelman and is not an inherent requirement in
Shtivelman [reply brief].
We will not sustain the examiner’s rejection of claims
1-20. We agree with appellant that there is no disclosure in
Shtivelman of identifying a trend in response to measured queue
waiting periods and providing a status responsive to the trend.
Shtivelman essentially monitors the amount of time that previous
callers have spent in a queue and estimates the time a present
caller will have to wait in the queue by averaging the wait times
for the previous callers. That this historical average is not
the same as identifying a trend can be shown by the following
example. Suppose the historical waiting period in Shtivelman is
two minutes, three minutes and four minutes in that order. The
Shtivelman system would indicate to the user that a waiting time
of three minutes (the average) should be expected. If the
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Application 09/425,748
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historical waiting period were instead four minutes, three
minutes and two minutes in that order, Shtivelman would still
indicate a waiting period of three minutes (the average).
Shtivelman does not distinguish the fact that in the first
scenario the waiting period is getting worse while in the second
scenario the waiting period is getting better. Appellant’s
claimed invention, on the other hand, identifies a trend so that
it recognizes that the status in the two scenarios is not the
same because the trends are different. The fact that Shtivelman
recognizes patterns such as times of heavy traffic does not meet
the claimed invention because Shtivelman does not use these
patterns in providing the status of the system responsive to
these patterns. We do not agree with the examiner’s attempt to
read the identifying of a trend, as recited in the claimed
invention, as being met by the different patterns disclosed by
Shtivelman. We also do not agree with the examiner’s position
that Shtivelman must inherently identify a trend in the
performance of the system described therein. As noted above, it
appears to us that Shtivelman does nothing more than provide
expected waiting times to callers based upon the historical
average of previous waiting times. There is no requirement or
disclosure that these waiting times take into account trends
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which have been identified.
In summary, we have not sustained the examiner’s
rejection of the claims on appeal. Therefore, the decision of
the examiner rejecting claims 1-20 is reversed.
REVERSED
JERRY SMITH )
Administrative Patent Judge )
)
)
)
ANITA PELLMAN GROSS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
MAHSHID D. SAADAT )
Administrative Patent Judge )
JS/dym
Appeal No. 2003-1581
Application 09/425,748
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Charles E Gotlieb
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