Ex Parte McDaniel et al

Patent Trial and Appeal Board

Dec 30, 2016

13742024 (P.T.A.B. Dec. 30, 2016)

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.
13/742,024 01/15/2013 Patrick M. McDaniel P2012-30C2 7914
103720 7590 01/04/2017
Noble Systems Corporation
Attn: Karl Koster
1200 Ash wood Parkway
Suite 300
Atlanta, GA 30338-4747
EXAMINER
SCHEUNEMANN, RICHARD N
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
01/04/2017 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):
kkoster@noblesystems.com
chaggerty@noblesys.com
noblepatent@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PATRICK M. MCDANIEL
and KARL H. KOSTER
Appeal 2014-0039811
Application 13/742,0242
Technology Center 3600
Before BIBHU R. MOHANTY, BRADLEY B. BAYAT, and
MATTHEW S. MEYERS, Administrative Patent Judges.
MEYERS, 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—27. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants’ Appeal Brief (“Appeal Br.,” filed
October 21, 2013), and Reply Brief (“Reply Br.,” filed December 18, 2013),
the Examiner’s Answer (“Ans.,” mailed November 18, 2013) and Final
Office Action (“Final Act.,” mailed July 26, 2013).
2 Appellants identify Noble Systems Corporation as the real party in interest
(Appeal Br. 2).
Appeal 2014-003981
Application 13/742,024
CLAIMED INVENTION
Appellants’ claimed invention relates generally to a system “for
fulfilling a worker resource deficiency by inviting multiple reserve workers
to be recalled to work” (Spec. 14).
Claims 1, 9, and 17 are the independent claims on appeal. Claim 1,
reproduced below with bracketing matter added, is illustrative of the subject
matter on appeal:
1. A method comprising the steps of:
[a] determining an employee resource deficiency by at
least one computer processor, the employee resource deficiency
comprising a second quantity of employee resources needed to
work during a future time period in addition to a first quantity of
employee resources currently scheduled to work during the
future time period;
[b] identifying a first employee associated with a first
reserve schedule by the at least one computer processor, the first
reserve schedule comprising (1) one or more reserve time periods
identified by the first employee, the one or more reserve time
periods occurring during off-time that is outside one or more
regularly scheduled work shifts for the first employee and
indicating when the first employee is potentially available to be
recalled to work and (2) one or more unavailable time periods,
the one or more unavailable time periods occurring during the
off-time that is outside the one or more regularly scheduled work
shifts for the first employee and indicating when the first
employee is unavailable to be recalled to work, wherein the first
reserve schedule has a first reserve time peliod that coincides
with the future time period;
[c] identifying a second employee associated with a
second reserve schedule by the at least one computer processor,
the second reserve schedule comprising (1) one or more reserve
time periods identified by the second employee, the one or more
reserve time periods occurring during off-time that is outside one
or more regularly scheduled work shifts for the second employee
and indicating when the second employee is potentially available
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Application 13/742,024
to be recalled to work and (2) one or more unavailable time
periods, the one or more unavailable time periods occurring
during the off-time that is outside the one or more regularly
scheduled work shifts for the second employee and indicating
when the second employee is unavailable to be recalled to work,
wherein the second reserve schedule has a second reserve time
period that coincides with the future time period;
[d] transmitting a first invitation to the first employee, the
first invitation inquiring as to whether the first employee is
willing to work during the first reserve time period identified in
the first reserve schedule that coincides with the future time
period to fulfill at least a portion of the second quantity of
employee resources needed to work during the future time
period;
[e] receiving a first reply from the first employee
indicating whether the first employee is willing to work during
the first reserve time period identified in the first reserve
schedule that coincides with the future time period;
[f] transmitting a second invitation to the second
employee, the second invitation inquiring as to whether the
second employee is willing to work during the second reserve
time period identified in the second reserve schedule that
coincides with the future time period to fulfill at least a portion
of the second quantity of employee resources needed to work
during the future time period; and
[g] receiving a second reply from the second employee
indicating whether the second employee is willing to work
during the second reserve time period identified in the second
reserve schedule that coincides with the future time period.
REJECTIONS
Claims 9-16 are rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter.
Claims 1—3, 9-11, and 17—19 are rejected under 35 U.S.C. § 103(a) as
unpatentable over deSilva (US 2005/0004828 Al, pub. Jan. 6, 2005) and
Thompson (US 8,219,430 Bl, iss. July 10, 2012).
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Application 13/742,024
Claims 4, 5, 8, 12, 13, 16, 20, 21, and 24 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over deSilva, Thompson, and Gorder (US
2008/0255919 Al, pub. Oct. 16, 2008).
Claims 6, 14, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over deSilva, Thompson, and Narasimhan (US 2005/0096962
Al, pub. May 5, 2005).
Claims 7, 15, and 23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over deSilva, Thompson, and Stolyar (US 2010/0266116 Al,
pub. Oct. 21, 2010).
Claims 25—27 are rejected under 35 U.S.C. § 103(a) as unpatentable
over deSilva, Thompson, and Brown (US 2009/0292555 Al, pub. Nov. 26,
2009).
ANALYSIS
Non-Statutory Subject Matter
Independent claim 9 and dependent claims 10—16
Appellants do not offer any response to the Examiner’s rejection of
claims 9—16 under 35 U.S.C. § 101. Therefore, we summarily sustain the
Examiner’s rejection.
Obviousness
Appellants argue claims 1—27 as a group (see Appeal Br. 8, 13). We
select independent claim 1 as representative. The remaining claims stand or
fall with independent claim 1. See 37 C.F.R. § 41.37(c)(l)(vii).
We are not persuaded by Appellants’ argument that the Examiner
erred in rejecting independent claim 1 under 35 U.S.C. § 103(a) because the
combination of deSilva and Thompson fails to disclose or suggest
“identifying a first employee associated with a first reserve schedule” and
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Application 13/742,024
“identifying a second employee associated with a second reserve schedule,”
as required by limitations [b] and [c] of independent claim 1 (see Appeal Br.
8—13; see also Reply Br. 4—8). Instead, we agree with, and adopt the
Examiner’s findings and rationale, as set forth at pages 3—6 of the Final
Action (see Final Act. 4—8 (citing deSilva ]Hf 70, 78—79, 88—89; Fig. 7)), and
the Examiner’s response to Appellants’ arguments, as set forth at pages 2-4
of the Answer (see Ans. 2—\ (citing deSilva Tflf 6—9, 33, Abstract; Thompson,
col. 11,1. 64 — col. 12,1. 21)). We add the following discussion for
emphasis only.
deSilva is directed “to a system and method for providing an
improved ability to schedule staffing resources” which “allow[s] workers to
indicate preferences for specific shifts during a planning horizon, within
limitations imposed by the scheduling system” (deSilva 1, 6).
deSilva discloses
[scheduling constraints received in step 105 may include, for
example, staff preferences, staff hired profiles, demand profiles,
scheduling guidelines, and history. Staff preferences may
include, by way of example and not limitation, data such as the
time of day and/or the day of week that a worker prefers to work
or not to work.
(id. 133). deSilva further discloses that “[scheduling guidelines may
include a permission relating to granted time off, federal and state labor
laws, contractual obligations, labor costs, or other information” (id.).
deSilva discloses that “[d]ata relating to staff preferences, staff hired
profiles, demand profiles, scheduling guidelines and history may be further
classified as either hard constraints or soft constraints, according to
management choice” (id. 134). deSilva also discloses that “[djaily
scheduling may be necessary where, for instance, staffing demand
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Application 13/742,024
(workload) and/or supply (available staff) has changed in a way that limits
the utility of the schedule output in step 125” {id. 170). In this regard,
deSilva discloses optimizing daily schedules using a
process [which] reads the constraints and strategies for daily
scheduling in step 610. The constraints may include staff
qualifications needed to meet the demand. Staff preferences and
profiles may also be considered in step 610. The process reads
the actual staffing needs in step 615 and the up-to-date schedules
in 620 (including any changes made to the schedule by shift-
swap messaging step 135 and any previous daily adjustments to
the schedule output in step 125).
{Id. 178). deSilva further discloses “[t]he process reads the availability of
staff resources in step 625, then reads the availability of other resources,
such as overtime staff, pool staff, staff scheduled to be on-call, and the
agency staff in step 630. In an alternative embodiment, steps 625 and 630
may be combined” {id. 1 79). deSilva also discloses that “[d]aily
optimization step 513 may be based on staff dissatisfaction and/or monetary
costs” {id. 1 83; see also id. ^fl[ 88—89; Fig. 7).
Thompson is directed to a “resource management system that
manages worker resources based on factors including work plans input by
the workers” (Thompson, col. 1,11. 11—15). Thompson’s system allows
workers to create a work plan using activity codes which correspond to
possible activities for the work or vacation leave {id. at col. 8,11. 10-34).
Thompson also discloses
[mjonitor module 156 determines that additional workers are
needed to handle an unexpected surge in telephone calls on a
particular day and/or an unexpectedly high degree of
absenteeism, the module may automatically generate and
transmit an e-mail message to workers requesting additional
workers for a certain time period (e.g., between 7:00 PM and
9:00 PM that evening). Interested workers may respond to the e-
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mail and the work plans of these interested workers will be
automatically updated to reflect this interest.
(Id at col. 12,11. 1-9).
Appellants argue that deSilva, upon which the Examiner relies, fails to
disclose or suggest a first and second “reserve schedule,” as recited by
limitations [b] and [c] of independent claim 1 because “a list of ‘on-call’
staff is not the same as a ‘reserve schedule’ having the features as recited in
Claim 1” (Appeal Br. 9—10). However, Appellants’ argument is not
persuasive at least because the Examiner does not rely solely on the “on-
call” list referenced in deSilva. Instead, as the Examiner points out, “the
‘overtime staff and ‘pool staff availability of deSilva could also be
considered as ‘reserve schedules’” (Ans. 3). We agree with the Examiner.
In making this determination, we note that deSilva does not
merely disclose “a list of ‘on-call’ staff,” as Appellants contend (Appeal Br.
10), nor does deSilva merely disclose a list of “overtime staff’ and
“pool staff.” Instead, deSilva is directed to a system “for scheduling
resources . . . [which] allow[s] workers to indicate preferences for specific
shifts during a planning horizon” (deSilva 1 6). deSilva discloses that its
system receives scheduling constraints “such as the time of day and/or the
day of week that a worker prefers to work or not to work” during a daily
optimization process (id Tflf 33, 77, 78). deSilva further discloses that its
system “reads actual staffing needs in step 615 and the up-to-date schedules
in 620” and then, if adjustments must be made prior to the start of a shift,
“reads the availability of staff resources . . . such as overtime staff, pool
staff, staff scheduled to be on-call, and the agency staff’ meet the needs
(deSilva ^fl[ 77—79). Thus, Appellants’ argument is not persuasive to show
error in the Examiner’s rejection.
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Application 13/742,024
Appellants also argue that “deSilva fails to teach or suggest reserve
time periods that are identified by employees,” as recited by limitations [b]
and [c] (Reply Br. 7—8). More particularly, Appellants argue
although the staff preferences described in deSilva are
identif[ied] by staff members, these preferences serve as
constraints identifying when a staff member prefers to work and
are not used as some type of resource to read the availability of
individual staff “for consideration as overtime staff, pool staff,
on-call staff, and agency staff’ as the Examiner has suggested.
(Id. at 8).
However, deSilva discloses that its system “seek[s] to meet all hard
constraints imposed by a user, and utilize[s] a flexible scoring technique to
minimize the violation of soft constraints” (deSilva 17). More importantly,
deSilva discloses that “[d]ata relating to staff preferences, staff hired
profiles, demand profiles, scheduling guidelines and history may be further
classified as either hard constraints or soft constraints, according to
management choice” (id. 134). deSilva also discloses that the “[d]aily
optimization step 513 may be based on staff dissatisfaction . . . costs” which
“indicate^ an undesirable work pattern for a staff member whose schedule is
affected by the daily adjustments” and deSilva discloses that “[s]ome of the
decisions that may result in dissatisfaction are: overtime assignment^]”
(id. 83, 88—89). Thus, Appellants’ argument is not persuasive to show
error in the Examiner’s rejection of independent claim 1.
Appellants last argue that the Examiner’s “reference to the proposition
that the preferences indicated by employees described in deSilva teach or
suggest the reserve time periods identified by employees as recited in the
independent claims . . . constitute[s] a new ground of rejection” (Reply Br.
8—9). The difficulty, however, with Appellants’ argument is that Appellants
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did not file a petition under 37 C.F.R. § 1.181 to the Director requesting that
the rejection in the Answer be designated as a new ground of rejection. See
37 C.F.R. §41.40(a).3
Notwithstanding, Appellants have been provided with the opportunity
to respond to the Examiner’s Answer in the Reply Brief, and in fact done so
(see, e.g., Reply Br. 7—8). And, it is well-established that the Board is free
to affirm an Examiner’s rejection so long as “appellants have had a fair
opportunity to react to the thrust of the rejection.” In re Kronig, 539 F.2d
1300, 1302-03 (CCPA 1976). Thus, Appellants’ argument is not persuasive
to show error in the Examiner’s rejection of independent claim 1.
In view of the foregoing, we sustain the Examiner’s rejection of
independent claim 1 under 35 U.S.C. § 103(a). We also will sustain the
Examiner’s rejection of claims 2—27, which stands with independent claim
1.
DECISION
The Examiner’s rejection of claims 9—16 under 35 U.S.C. § 101 is
summarily sustained.
3 37 C.F.R. §41.40(a) reads:
Any request to seek review of the primary examiner’s failure to
designate a rejection as a new ground of rejection in an examiner’s
answer must be by way of a petition to the Director under § 1.181
of this title filed within two months from the entry of the
examiner’s answer and before the filing of any reply brief. Failure
of appellant to timely file such a petition will constitute a waiver
of any arguments that a rejection must be designated as a new
ground of rejection.
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Appeal 2014-003981
Application 13/742,024
The Examiner’s rejection of claims 9-16 under 35 U.S.C. § 103(a) is
affirmed.
The Examiner’s rejections of claims 1—27 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
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