Ex Parte Iacovone et al

Patent Trial and Appeal Board

Jun 28, 2016

11867779 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/867,779 10/05/2007
82074 7590 06/30/2016
Carlson, Gaskey & Olds/Masco Corporation
400 West Maple Road
Suite 350
Birmingham, MI 48009
FIRST NAMED INVENTOR
Michael Anthony Iacovone
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.
60137-508PUS1;006-3023-U 9673
EXAMINER
AGWUMEZIE, CHINEDU CHARLES
ART UNIT PAPER NUMBER
3685
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
ptodocket@cgolaw.com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex Parte MICHAEL ANTHONY IACOVONE, ADHIR CHOBE, and
TARASZHERUKHA
Appeal2014-004156 1
Application 11/867,7792
Technology Center 3600
Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HUTCHINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
Sept 18, 2013) and Reply Brief ("Reply Br.," filed Jan. 31, 2014), and the
Examiner's Answer ("Ans.," mailed Dec. 3, 2013) and Final Office Action
("Final Act.," mailed Oct. 12, 2012).
2 Appellants identify Masco Contractor Services LLC as the real party in
interest. App. Br. 1.
Appeal2014-004156
Application 11/867,779
CLAIMED fNVENTION
Appellants' claimed invention "relates generally to a system and
method for dispatching and tracking work orders and work crews." Spec.
ii 1.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A method of dispatching work orders comprising:
logging into a work order dispatch program;
comparing a list of existing dispatchable units
against at least one selection criteria using a central
processing unit, wherein each of said dispatchable units
comprises at least one of a driver, crew member, and a
vehicle;
creating an adequate dispatchable unit using a
central processing unit in response to finding no adequate
dispatchable units;
assigning a company resource to said adequate
dispatchable unit using a central processing unit;
assigning work orders to said adequate dispatchable
unit using a central processing unit based on any number
of criteria; and
transmitting information contained within said
adequate dispatchable unit to a work order dispatch
receiver device.
2
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Application 11/867,779
REJECTIONS 3
Claims 1-7, and 10-19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Harrison (US 2003/0069797 Al, pub. Apr. 10, 2003) and
Simpson (US 7 ,567 ,811 B2, iss. July 28, 2009); and/or Storch (US
5,920,846, iss. July 6, 1999). 4
Claims 8 and 9 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Harrison, Simpson, and Ahsan (US 2007/0251988, pub. Nov. 1, 2007).
ANALYSIS
Appellants argue claims 1-7 and 10-19 as a group. App. Br. 3---6.
We select claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv).
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting claim 1 under 35 U.S.C. § 103(a) because neither Simpson
nor Storch discloses or suggests "creating an adequate dispatchable unit
using a central processing unit in response to finding no adequate
dispatchable units," as recited in claim 1. App. Br. 3---6; see also Reply
Br. 2-3.
As an initial matter, Appellants argue that "the step of creating an
adequate dispatchable unit must be performed within the process of
searching for an adequate dispatchable unit and must be performed in
3 The Examiner also took Official Notice that certain claim elements in
claims 1-19 are well-known. See Final Act. 3--4.
4 We treat the omission of claim 2 from the list of claims subject to the
rejection as inadvertent error, given its treatment at pages 7-8 of the Final
Office Action. Likewise, we treat the identification of claims 8 and 9 in the
statement of rejection at page 4 of the Final Action as inadvertent error,
because claims 8 and 9 instead are rejected separately at pages 12-14 of the
Final Action.
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Application 11/867,779
response to failing to find an adequate dispatchable unit." App. Br. 5. We
disagree. Claim 1 recites that an adequate dispatchable unit is created in
response to finding no adequate dispatchable units. But we do not find, and
Appellants do not identify, any claim language that requires the step of
creating to occur within a search process. In our view, the claim language,
under a broadest reasonable interpretation, encompasses creating an
adequate dispatchable unit after a search process, in response to finding no
adequate dispatchable units.
In rejecting claim 1under35 U.S.C. § 103(a), the Examiner finds that
Harrison discloses substantially all of the claim limitations. Final Act. 5.
The Examiner acknowledges that Harrison does not disclose, inter alia,
creating an adequate dispatchable unit using a central processing unit in
response to finding no adequate dispatchable units. Id. at 5---6. However, the
Examiner reasons that it would have been obvious to modify Harrison's
system to arrive at the claimed invention "to facilitate work order
performance and increase efficiency" based on Simpson and/or Storch
and/or common knowledge. Id. at 6-7; see also id. at 3 (relying on common
knowledge and practice in emergency response organizations, e.g., hospitals,
police, army, network response teams, telecommunications, to create a new
response team when no existing dispatchable team is available for dispatch).
For the sake of brevity, we address the rejection of claim 1 under 35 U.S.C.
§ 103(a) as unpatentable over Harrison and Simpson. 5
5 As outlined below, we find that the Examiner properly rejected claim 1
under§ 103(a) as unpatentable over Harrison and Simpson. Therefore, we
need not, and do not, address the Examiner's alternative rejection of claim 1
under§ 103(a) as unpatentable over Harrison and Storch.
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Appeal2014-004156
Application 11/867,779
Simpson describes that a dispatcher typically considers several
interrelated factors (e.g., geographic location, personnel availability,
components available on an eligible service vehicle) before assigning a
vehicle to a site of malfunctioning equipment. Simpson, col. 1, 11. 24--44.
A need exists for "selecting a particular vehicle and its personnel from a
fleet of vehicles in the field to repair equipment malfunctions efficiently and
effectively at various geographic locations." Id. col. 2, 11. 32-36.
Appellants assert that "creating [an adequate] dispatchab le unit," as
recited in claim 1, means "creating a new entry in the computer database
corresponding to a grouping of existing trucks, persons, and/ or equipment."
App. Br. 3--4. Appellants argue that selecting an existing unit from a
database, as disclosed by Simpson, does not constitute "creating an adequate
dispatchable unit," as recited in claim 1. Id. at 4. Specifically, Appellants
contend that Simpson: (1) describes selecting an existing grouping of
vehicle and vehicle's assigned technician; (2) does not disclose grouping
technicians for a job (i.e., "putting existing technicians together to do a
particular job"); and (3) does not disclose "any mechanism for addressing
the situation where there is no existing dispatchable unit that is adequate to
perform the job." Id. (citing Simpson, col. 2, 11. 31-36); see also Reply Br.
2-3.
However, the Examiner's obviousness analysis "need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex,
Inc. 550 U.S. 398, 418 (2007). Here, even if we adopt Appellants'
interpretation of the claimed phrase "creating an adequate dispatchable
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Application 11/867,779
unit," Appellants have not explained why it would have been non-obvious to
create a new entry in a computer database corresponding to new grouping of
existing trucks, persons, and/or equipment when an adequate dispatchable
unit is not found. For example, Appellants do not contend that creating a
new entry in a database presents unusual technical difficulties or would be
beyond the capabilities of a person of ordinary skill in the art.
To the extent Appellants take the position that creating a new
grouping of existing trucks, persons, and/or equipment is a non-obvious
difference from the prior art, we agree with the Examiner that such features
are common knowledge. See Final Act. 3. Elaborating further upon the
Examiner's finding, it is common experience, and one likely to have been
undertaken by the ordinary skilled artisan, to have received or witnessed
others receiving emergency service from a hospital. To provide the
emergency service, a hospital determines room and/or vehicle availability,
equipment availability, and personnel availability. In other words, the
hospital must create a new grouping of resources (e.g., equipment,
rooms/vehicles, medical personnel) to provide an emergency service that
takes account of the changing availability of each necessary resource for the
service (i.e., in response to finding no adequate grouping).
Further, because it is common practice for hospital personnel to create
an adequate dispatchable unit in response to finding no adequate
dispatchable unit, having the step performed by a central processing unit is
merely automation of a well-known, manual business process, already in
existence at the time of the instant application. See Leapfrog Enters., Inc. v.
Fisher Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) ("[O]ne of ordinary
skill in the art ... would have found it obvious to combine the Bevan device
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Application 11/867,779
with the SSR to update it using modem electronic components in order to
gain the commonly understood benefits of such adaptation, such as
decreased size, increased reliability, simplified operation, and reduced
cost.").
In the absence of any specific, technical reasoning by the Appellants
explaining why the Examiner's articulated reasoning is in error, we are not
persuaded of Examiner error.
Appellants maintain that the Examiner's use of Official Notice is
improper because the Examiner failed to provide any specific factual
findings predicated on sound and technical and scientific reasoning. 6 App.
Br. 5---6 (citing MPEP § 2144.03(C)); see also Reply Br. 1-2. But
Appellants have not specifically pointed out the supposed errors in the
Examiner's Official Notice, including stating why the noticed fact is not
considered to be common knowledge or well-known in the art. See MPEP
§ 2144.03(C). An adequate traverse must contain adequate information or
argument to create on its face a reasonable doubt regarding the
circumstances justifying Examiner's notice of what is well known to one of
ordinary skill in the art. In re Boon, 439 F.2d 724, 728 (CCPA 1971). As
Appellants have not provided any such information or argument as to why
6 Appellants also argue that the Examiner erred in failing to provide
Appellants sufficient time to respond. However, the Examiner made use of
common knowledge in the Final Office Action in response to Appellants'
arguments regarding the alleged differences from the combination (see Final
Act. 3--4), and Appellants filed an Appeal Brief more than eleven months
later. In any event, such issue is a petitionable matter, not an appealable
matter. See MPEP § 1002.02(C). Thus, the relief sought by Appellants
would have been properly presented by a petition to the Director under
3 7 C.F .R. § 1.181 instead of by appeal to this Board.
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Application 11/867,779
creating an adequate dispatchable unit in response to finding no adequate
dispatchable unit is not well-known, we find Appellants' traversal
inadequate.
In view of the foregoing, we sustain the Examiner's rejection of
claim 1under35 U.S.C. § 103(a). For the same reasons, we also sustain the
Examiner's rejection of claims 2-7 and 10-19, which fall with claim I.
Dependent claims 8 and 9
Appellants do not present any arguments in support of the
patentability of dependent claims 8 and 9 except to assert that Ahsan fails to
cure the alleged deficiencies of Harrison and Simpson. See App. Br. 6.
We are not persuaded, for the reasons outlined above, that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a). Therefore,
we sustain the Examiner's rejection of claims 8 and 9 under 35 U.S.C.
§ 103(a) for the same reasons.
DECISION
The Examiner's rejections of claims 1-19 under 35 U.S.C. § 103(a)
are 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)(l)(iv).
AFFIRMED
8