Ex Parte Macy et al

Board of Patent Appeals and Interferences

Jul 13, 2011

10905254 (B.P.A.I. Jul. 13, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10/905,254 12/22/2004 Barbara Macy 014033-000048 2254
69603 7590 07/14/2011
MOORE & VAN ALLEN, PLLC FOR BOFA
430 DAVIS DRIVE, SUITE 500
POST OFFICE BOX 13706
RESEARCH TRIANGLE PARK, NC 27709
EXAMINER
SANTIAGO, LUIS F
ART UNIT PAPER NUMBER
3624
MAIL DATE DELIVERY MODE
07/14/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
___________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
___________ 6
7
Ex parte BARBARA MACY, ALINE YOUNG, 8
and KENNETH R. DAFFORN 9
___________ 10
11
Appeal 2010-004626 12
Application 10/905,254 13
Technology Center 3600 14
___________ 15
16
Before HUBERT C. LORIN, ANTON W. FETTING, and 17
BIBHU R. MOHANTY, Administrative Patent Judges. 18
FETTING, Administrative Patent Judge. 19
DECISION ON APPEAL1 20

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2010-004626
Application 10/905,254

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STATEMENT OF THE CASE2 1

2 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed August 28, 2009) and Reply Brief (“Reply Br.,” filed January 19,
2010), and the Examiner’s Answer (“Ans.,” mailed November 18, 2009).
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Barbara Macy, Aline Young, and Kenneth R. Dafforn (Appellants) seek 1
review under 35 U.S.C. § 134 (2002) of a final rejection of claims 1-23, the 2
only claims pending in the application on appeal. We have jurisdiction over 3
the appeal pursuant to 35 U.S.C. § 6(b) (2002). 4
The Appellants invented a tool that can help facilitate an expedited six 5
sigma and/or lean methodology. Such a methodology may be referred to as 6
"turbolean" and can be used to operationalize business process excellence. 7
The turbolean method includes characterizing current or "as-is" business 8
processes and developing, characterizing, and evaluating "to-be" business 9
processes in a continuous improvement loop. This tool can facilitate the 10
evaluation of "takt" time for as-is and to-be processes, where "takt" is a 11
German word for a baton or the like that is used to regulate tempo in music. 12
(Specification 2:para 6). 13
An understanding of the invention can be derived from a reading of 14
exemplary claim 1, which is reproduced below [bracketed matter and some 15
paragraphing added]. 16
1. A computer-implemented method of determining an amount 17
of time needed to produce a unit of output subject to demand in 18
an as-is process and a to-be process developed through 19
operationalizing process excellence, the method comprising: 20
[1] receiving as input, 21
from one of a data store and a storage medium, 22
a daily time available for the as-is process and 23
a number of units of output demanded in a pre-selected 24
time period, 25
the daily time available and the number of units of 26
output having been derived in the course of 27
characterizing the as-is process; 28
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Application 10/905,254

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[2] calculating, 1
using a computing platform, 2
a takt [sic] time 3
that further characterizes the as-is process 4
in order to facilitate further operationalizing of 5
process excellence; 6
[3] receiving as input, 7
from one of a data store and a storage medium, 8
a daily time available 9
for the to-be process and 10
a number of units of output 11
demanded in a pre-selected time period, 12
the daily time available and the number of units of output 13
having been derived in the course of characterizing 14
the to-be process; 15
[4] calculating, 16
using a computing platform, 17
a takt time 18
that further characterizes the to-be process 19
in order to facilitate further operationalizing of 20
process excellence; and 21
[5] outputting, 22
using a computing platform, 23
the takt time for 24
the as-is process and 25
the to-be process 26
to in part provide a comparative evaluation of 27
the as-is process and 28
the to-be process 29
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Application 10/905,254

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in order to create a continuous improvement productivity 1
loop. 2
The Examiner relies upon the following prior art: 3
Newmark US 6,631,305 B2 Oct. 7, 2003
Claims 1-14 and 20-23 stand rejected under 35 U.S.C. § 101 as directed 4
to non-statutory subject matter. 5
Claims 1-23 stand rejected under 35 U.S.C. § 102(b) as anticipated by 6
Newmark. 7
ISSUES 8
The issue of novelty turns on whether Newmark describes a to-be 9
process whose takt time is compared with that of an as-is process 10
FACTS PERTINENT TO THE ISSUES 11
The following enumerated Findings of Fact (FF) are believed to be 12
supported by a preponderance of the evidence. 13
Facts Related to Claim Construction 14
01. The disclosure contains no lexicographic definition of “to-be.” 15
02. The ordinary and customary meaning of “to-be” is to exist. The 16
conjugation of the verb to be is I am, you are, he is, we are, you 17
are, they are. Thus, the “to be” verbs am, are, and is all mean 18
existence. Since the verb “to be” is distinguished in the claims 19
from “as-is,” the existence of “to-be” is at some point after “as-is.” 20
Facts Related to Appellants’ Disclosure 21
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03. Takt time in the business process sense is related to the rate at 1
which desired units are output from a business process. 2
Specification 3:Para 6. 3
Facts Related to the Prior Art - Newmark 4
04. Newmark is directed to optimizing assembly line operations, and 5
more particularly, to a process implementing certain aspects of the 6
six sigma quality analysis program with lean production 7
techniques to identify opportunities for improvement in assembly 8
line production. Newmark 1:10-15. 9
05. One of the key elements of lean production is producing to takt 10
time. Determining takt time is an essential first step in analyzing 11
an assembly line. Takt time is the rate in time that a plant must 12
maintain to meet customer demand. One of the basic tenets of lean 13
manufacturing is that if each operation is done in the same amount 14
of time, e.g. at or below the takt time, then the result will be an 15
efficient one-piece flow process. Control steps are often 16
implemented to maintain continuous improvement in the assembly 17
line. This is based on Kaizen techniques. Newmark 1:34-43. 18
06. Newmark uses a capability analysis, analyzing overall process 19
performance, analyzing individual operations in a process, 20
predicting process performance, and serving as a basis for 21
implementing steps in process optimization. Newmark 2:50-55. 22
07. Newmark computes a future takt time using the planned available 23
production time and forecast customer demand. Newmark 5:43-24
48. 25
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08. Newmark conducts capability analysis using the current assembly 1
takt time, the new takt time, and several other proposed takt times 2
to validate the capability of the process meeting the various takt 3
times. Newmark 19:28-31. 4
ANALYSIS 5
Claims 1-14 and 20-23 rejected under 35 U.S.C. § 101 as directed to non-6
statutory subject matter. 7
We do not reach this issue as it is unsettled whether this rejection 8
remains. The Appellants did not respond to the rejection, but instead stated 9
that the Examiner related to the Appellants that the inclusion of the rejection 10
in the Answer was in error. Reply Br. 2. 11
Claims 1-23 rejected under 35 U.S.C. § 102(b) as anticipated by Newmark. 12
The sole issue is whether Newmark describes a to-be process whose takt 13
time is compared with that of an as-is process. Appeal Br. 5-6; Reply Br. 2-14
4. 15
It is uncontested that Newmark describes computing takt time, as 16
Newmark explicitly uses that term. Takt time is the rate in time that a plant 17
must maintain to meet customer demand. Control steps are often 18
implemented to maintain continuous improvement in the assembly line 19
based on Kaizen techniques. FF 05. Thus the background alone in Newmark 20
implies that takt times improve with process improvement, resulting in a to-21
be takt time different from as-is. Newmark explicitly recites using a 22
capability comparison analysis to identify such improvements. FF 06. 23
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Newmark computes a future takt time using the planned available 1
production time and forecast customer demand. FF07. Finally, Newmark 2
explicitly compares the current and future takt times for current and 3
proposed future processes. FF 08. The Appellants appear to be arguing that 4
the future takt times in Newmark are for existing processes. However, 5
whether such future processes to be differ from as is processes is not 6
pertinent as the claim makes no such distinction. But even if the claim did, 7
Newmark clearly describes the processes changing over time (FF 05-06). 8
CONCLUSIONS OF LAW 9
The rejection of claims 1-14 and 20-23 under 35 U.S.C. § 101 as 10
directed to non-statutory subject matter is not reached. 11
The rejection of claims 1-23 under 35 U.S.C. § 102(b) as anticipated by 12
Newmark is proper. 13
DECISION 14
To summarize, our decision is as follows. 15
 The rejection of claims 1-14 and 20-23 under 35 U.S.C. § 101 as 16
directed to non-statutory subject matter is not reached. 17
 The rejection of claims 1-23 under 35 U.S.C. § 102(b) as anticipated 18
by Newmark is sustained. 19
No time period for taking any subsequent action in connection with this 20
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 21
§ 1.136(a)(1)(iv) (2007). 22
23
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AFFIRMED 1
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mev 6
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