Ex Parte Jones et alDownload PDFPatent Trial and Appeal BoardSep 25, 201310172306 (P.T.A.B. Sep. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte KEVIN THOMAS JONES, MELISSA DORIS BEEBE, JEFFREY ALAN MARRS, and MICHAEL SHANE CASTLE ____________________ Appeal 2011-000633 Application 10/172,306 Technology Center 2100 ____________________ Before JEAN R. HOMERE, MARC S. HOFF, and TREVOR M. JEFFERSON, Administrative Patent Judges. JEFFERSON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000633 Application 10/172,306 2 STATEMENT OF THE CASE1 Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 14 and 32-45.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Introduction The claims are directed to manufacturing order scheduling and materials replenishment system. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for scheduling work and delivery of material for items in a factory comprising: obtaining a customer order, the customer order including an item ordered by a customer and producing the item requiring a required quantity of a required material; determining a current state of an available inventory of material from a plurality of material sources; generating a material request plan for producing the item using the customer order and the current state of the available inventory; and scheduling work and delivery of material for items in the factory based upon the material request plan; wherein the determining the current state of the available inventory is performed separately from the generating the work schedule and the material delivery schedule; and the obtaining the customer order is performed separately from the generating the work schedule and the material delivery schedule; and, 1 Throughout the decision, we refer to the Appellants’ Appeal Brief (“App. Br.,” filed Mar. 16, 2008), and Reply Brief (“Reply Br.,” filed Jun. 20, 2008), and the Examiner’s Supplemental Answer (“Ans.,” mailed Jul. 8, 2010). 2 The Real Party in Interest is Dell Products L.P. App. Br. 1. Appeal 2011-000633 Application 10/172,306 3 performing the material request plan separately from the generating the material request plan. Rejections The Examiner made the following rejections: Claims 1-8, 11-14, 32-39, and 42-45 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Jenkins (US 2002/0188499 A1, Dec. 12, 2002). Ans. 3-6. Claims 9 and 40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jenkins and PR Newswire (Manugistics Introduces Industry's Only Extended Supply Chain Management Solution, (Jan. 14, 1997)). Ans. 7-8. Claims 10 and 41 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jenkins. Ans. 8-9. The Examiner also entered a New Ground of Rejection, rejecting claims 32-45 under 35 U.S.C. § 112 second paragraph as being indefinite. Ans. 9-15. ANALYSIS Claims 32-45 – 35 U.S.C. §112 second paragraph We pro forma affirm the Examiner’s rejection of claims 32-45 under 35 U.S.C. §112, second paragraph as being indefinite, which were not separately argued. Independent Claim 1 – 35 U.S.C. § 102(e) Appellants repeat identical arguments for independent claims 1 and 32 in the discussion of dependent claims 9, 10, 40 and 41. Compare App. Br. Appeal 2011-000633 Application 10/172,306 4 2-6 with App. Br. 6-8. Appellants’ arguments for claims 3 and 32 merely recite the claim indicating that Jenkins does not disclose the disputed limitation. See App. Br. 5-6. 37 C.F.R. § 41.37(c)(1)(vii) requires more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Accordingly, we select claim 1 as representative. Issue: Did the Examiner err in finding that Jenkins discloses “scheduling work and delivery of material for items in a factory” and “determining a current state of an available inventory of material from a plurality of material sources” where “determining the current state of the available inventory is performed separately from the generating the work schedule and the material delivery schedule,” as recited in claim 1? Appellants contend that the Examiner erred in finding that the portions of Jenkins cited by the Examiner, Jenkins ¶¶ [0008] and [0009] and [0043], refer to dynamically searching for product availability in a company and not to the claimed generating a material request plan for producing an item or the current state of available inventory where several steps are performed separately from related steps. App. Br. 4-5. The Examiner answers that Appellants admit that Jenkins discloses planning components that consider inventory constraints and teaches material resource delivery timing constraints. Ans. 15-16. The Examiner also finds that Jenkins teaches that because the planning component, the production planning, the delivery component and the customer order component are separate components they can be performed separately. Ans. 3-4 (citing Jenkins ¶¶ [0033]; [0015], [0042], [0043], [0008], Figures 1A Appeal 2011-000633 Application 10/172,306 5 and 1B), 15-16 (citing Jenkins ¶¶ [0008], [0031]). Noting that Appellants’ arguments are bare allegations of missing claim limitations, the Examiner asserts that Appellants failed to explain why the separate components shown in Figure 1A and discussed separately in Jenkins are not performed separately. Ans. 15-16. The Examiner finds that Jenkins discloses that “production plans are generated based on real-time visibility of the network of material resources.” Ans. 16 (citing Jenkins, ¶ [0008]). We are not persuaded by Appellants’ arguments that the Examiner erred. We find that Jenkins, ¶¶ [0031] – [0038], [0042], [0043] and Figure 1A, discloses that production planning, delivery components, and customer order components may be performed separately. Indeed, Figure 1A of Jenkins shows that Planning Components 210, Material Planning 230, Scheduling Module 220, and Constrained Production Planning 430 each generate separate outputs. See Ans. 4. We also agree with the Examiner’s finding that Jenkins expressly states that production planning has “real-time visibility of the network material sources (¶ [0008]).” Ans. 16. We find that real-time visibility indicates continuous updating of current states for various production components. Thus, contrary to Appellants’ assertions, Jenkins teaches components that can “determine a current state of available inventory separately from generating a work schedule and a material delivery schedule.” Reply Br. 1-2. Based on the foregoing, we find that the Examiner did not err in finding that Jenkins teaches or suggests “scheduling work and delivery of material for items in a factory” and “determining a current state of an available inventory of material from a plurality of material sources” where “determining the current state of the available inventory is performed Appeal 2011-000633 Application 10/172,306 6 separately from the generating the work schedule and the material delivery schedule,” as recited in claim 1. Accordingly, we sustain the Examiner’s rejection of claims 1-8, 11-14, 32-39 and 42-45under 35 U.S.C. § 102(e). Finally, we note that independent claim 1 recites abstract ideas, namely, the steps of “determining a current state of an available inventory of material from a plurality of material sources,” “generating a material request plan for producing the item using the customer order and the current state of the available inventory” and “scheduling work and delivery of material for items in the factory based upon the material request plan.” A purely mental process is a sub-category of an abstract idea that may be excluded from patentability under § 101. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011) (describing mental processes as “a subcategory of unpatentable abstract ideas”). Should there be further prosecution with respect to claims 1-14, the Examiner’s attention is directed to the USPTO guidelines to aid in evaluating whether method claims are patent eligible. Under 2012 Interim Procedure for Subject Matter Eligibility Analysis of Process Claims Involving Laws of Nature (July 3, 2012) (http:// www.uspto.gov/patents/law/exam/2012_interim_guidance.pdf), an essential inquiry is: Does the claim focus on a law of nature, a natural phenomenon, or naturally occurring relation or correlation? If not, the method claims should be examined using the Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos, 75 Fed. Reg. 143, 43922-43928 (July 27, 2010) (http:// www.uspto.gov/patents/law/exam/bilski_guidance_27jul2010.pdf). Appeal 2011-000633 Application 10/172,306 7 Dependent Claims 9, 10, 40 and 41 – 35 U.S.C. § 103(a) Dependent claims 9, 10, 40 and 41 stand or fall with independent claim 1 discussed above. Accordingly, we affirm the Examiner’s rejection of claims 9, 10, 40 and 41under 35 U.S.C. § 103(a). DECISION For the above reasons, we: AFFIRM the Examiner’s rejection of claims 1-8, 11-14, 32-39 and 42-45under 35 U.S.C. § 102(e); AFFIRM the Examiner’s rejection of claims 9, 10, 40 and 41under 35 U.S.C. § 103(a); and AFFIRM pro forma the Examiner’s rejection of claims 32-45 under 35 U.S.C. §112 second paragraph. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED msc Copy with citationCopy as parenthetical citation