Ex Parte Pappas et alDownload PDFPatent Trial and Appeal BoardOct 29, 201412338942 (P.T.A.B. Oct. 29, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/338,942 12/18/2008 Anthony H. Pappas EXAK-50847 6339 26252 7590 10/30/2014 KELLY & KELLEY, LLP 6320 CANOGA AVENUE SUITE 1650 WOODLAND HILLS, CA 91367 EXAMINER CHAMPAGNE, LUNA ART UNIT PAPER NUMBER 3627 MAIL DATE DELIVERY MODE 10/30/2014 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 ___________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ___________ Ex parte ANTHONY H. PAPPAS, ERIC R. RENKEN, SCOTT K. PREWETT, VALERIE L. DORAN, JOHN O’HARA, MYLES CHRISTENSEN, and JOHN MILLIGAN ___________ Appeal 2012–000422 Application 12/338,942 Technology Center 3600 ___________ Before HUBERT C. LORIN, ANTON W. FETTING, and MICHAEL W. KIM, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000422 Application 12/338,942 2 STATEMENT OF THE CASE1 Anthony H. Pappas, Eric R. Renken, Scott K. Prewett, Valerie L. Doran, John O’Hara, Myles Christensen, and John Milligan (Appellants) seek review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1– 22, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). The Appellants invented a way of tracking time and activities of employees using a hand–held device for selecting from a list of activities and an electronic time clock which stores a unique code representing employee information and selected activity data, and related time stamps. Spec. para. 1. An understanding of the invention can be derived from a reading of exemplary claim 16, which is reproduced below [bracketed matter and some paragraphing added]. 16. A method for tracking time and activities, comprising the steps of: [1] providing a hand–held device storing a plurality of unique codes, each code corresponding to the hand–held device or user identity as well as an activity; [2] selecting an activity 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed May 13, 2011) and Reply Brief (“Reply Br.,” filed August 19, 2011), and the Examiner’s Answer (“Ans.,” mailed June 21, 2011). Appeal 2012-000422 Application 12/338,942 3 from a plurality of activities using an actuator of the device; [3] transmitting the selected unique code to a separate electronic time clock; and [4] using the electronic clock to create and associate a time stamp with the unique code as a file and storing the file on the electronic clock. The Examiner relies upon the following prior art: Cramer US 5,606,497 Feb. 25, 1997 Pappas US 2006/0146649 A1 July 6, 2006 Senn US 2006/0152480 A1 July 13, 2006 Ranganath US 2007/0052535 A1 Mar. 8, 2007 Suematsu US 2008/0224932 A1 Sep. 18,2008 Claims 1, 7–12, and 15–21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Cramer and Pappas. Claims 2 and 3 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Cramer, Pappas, and Senn. Claims 4–6, 13, 14, and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Cramer, Pappas, and Official Notice.2 2 Ranganath and Suematsu are also cited as evidence supporting Official Notice. Appeal 2012-000422 Application 12/338,942 4 ISSUES The issues of obviousness turn on whether Cramer shows it was predictable to provide a handheld device to alter the codes entered into the time clock of Pappas. FACTS PERTINENT TO THE ISSUES The following enumerated Findings of Fact (FF) are believed to be supported by a preponderance of the evidence. Facts Related to the Prior Art Cramer 01. Cramer is directed to a data logging device for recording in real time the elapsed time spent on a particular activity by a particular service provider for a particular client. It may be contained in a portable self-contained unit. The device has a selectable data memory and a memory for storing selected client, user and activity data along with start and stop times time for such activity, and allows the user to toggle start and stop times for particular activities. Cramer 1:48–56. Appeal 2012-000422 Application 12/338,942 5 02. In operation, the user calls up onto the display the user identification by depressing the select switch S, which then accesses a list of users, activities or clients. The user may scan the list of names accessed. Once the particular user is identified, the activity may be selected. The control system also calls up the second list which may contain client information. The user likewise selects a particular client. Thereafter, the user enters and moves to the next list thereby again entering that client name and calling up the activity list which likewise may be scrolled for the appropriate activity. Once the activity is selected, the user starts the timing function, which records the selected user, activity and client in the non–volatile memory along with the current time obtained from the real time clock unit. Cramer 3:18–49. Pappas 03. Pappas is directed to a time keeping apparatus specifically designed for monitoring employee time, such as at a job construction site or the like. Pappas para. 1. 04. It is common practice for employees to “clock–in” and “clock– out” when checking in and checking out of work, such as when arriving at work, taking a lunch break and leaving for the day. The use of time clocks for tracking the time when an employee checks in and checks out is common place. Pappas para. 2. 05. There is a continuing need for a time clock apparatus which automates the time keeping procedure. Pappas para. 10. Appeal 2012-000422 Application 12/338,942 6 06. Pappas describes a time attendance clock, and related time attendance system that uses portable touch buttons which include a passively readable code unique to the holder of the touch button. The touch button is brought into contact with the time attendance clock, which reads the touch button and creates a time attendance record, including the readable code and time of contact. Pappas para. 11. 07. A touch button contact extends through the front housing member so as not to be in electrical contact therewith. An electronic circuit disposed within the housing is electrically connected to the touch button contact so as to receive signals therefrom as the touch button interfaces with the touch button contact, typically by bringing the touch button into physical contact with the touch button contact detector. Pappas para. 13. 08. When an employee’s touch button is brought into contact with the touch button contact or detector, the integrated circuit housed within a stainless steel container of the touch button (illustrated as the circular end portion thereof), the code is read and relayed to the microcontroller. Pappas para. 37. 09. Each time a touch button is brought into contact with the touch button contact detectors, its unique code is relayed to the microcontroller for storage. At this time, the time of this occurrence is obtained from a real time clock in the electronic circuit which is in electronic communication with the microcontroller. The received and interpreted code as well as the Appeal 2012-000422 Application 12/338,942 7 extracted time is saved in a memory as a time attendance record. Pappas para. 38. ANALYSIS Claims 1, 7–12, and 15–21 rejected under 35 U.S.C. § 103(a) as unpatentable over Cramer and Pappas As to independent claims 1 and 16, we are not persuaded by the Appellants’ arguments that Cramer already has an internal clock and modifying Cramer to use Pappas’s separate clock would render Cramer unfit for its purpose. App. Br. 10–19 and 30–32; Reply Br. 2–8. If the Examiner were merely finding it obvious to use Cramer’s device to feed Pappas’ clock, we would perhaps agree with Appellants. But instead, the Examiner is substituting the capacity of Cramer to append codes to a clock on-off signal using a hand held device to trigger time keeping recording for the triggering apparatus of Pappas. “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference. . . . Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425, (CCPA 1981) (citation omitted). See also In re Sneed, 710 F.2d 1544, 1550, (Fed. Cir. 1983) (citation omitted) (“[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.”); and In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve an ability to combine their specific structures.”). Appeal 2012-000422 Application 12/338,942 8 The Examiner is not suggesting that Pappas be physically incorporated within Cramer, but that Cramer provides the description of and reasoning for providing some automated way of appending codes to the time keeping of Pappas using a convenient hand held device, and Pappas already has the separate clock recited in the claims. The location of the clock, whether within such a device as in Cramer or centrally located as in Pappas, would be dictated by the nature of the environment. Pappas shows one such environment would require a separate clock. As to independent claim 10, reciting a data transmitter comprising a conductive member in electrical connection to the electronic circuit and adapted to be placed into contact with and transmit the selected activity code and identification code to a conductive receptor of an electronic time clock (claim 10 final limitation), we are not persuaded by the Appellants’ argument that Cramer fails to describe this. Pappas describes making such electrical contact as an implementation for passing the clock triggering signal. Appellants argue that it would be improper to modify Cramer, but it is Pappas’s clock where the connection is made. Dependent claim 7 has a similar limitation to claim 10 and the arguments are similar. Appeal 2012-000422 Application 12/338,942 9 Claims 2 and 3 rejected under 35 U.S.C. § 103(a) as unpatentable over Cramer, Pappas, and Senn These claims are not separately argued. Claims 4, 5, 6, 13, 14, 22 rejected under 35 U.S.C. § 103(a) as unpatentable over Cramer, Pappas, and Official Notice As to independent claim 14, reciting wherein the conductive transmitter member comprises a metallic can having an integrated circuit therein and having a data contact in conductive connection with a lid or base of the can, and a ground contact in conductive connection with the corresponding lid or base of the can (claim 14), we are not persuaded by the Appellants’ argument that Cramer fails to describe this. Pappas describes its touch button as having such a configuration. Claims 5–6 have limitations similar to those in claims 10 and 14. Claim 4 recites a key ring attachment, which is a notoriously well known physical accessory for retaining small portable objects. Appellants argue that Cramer’s box is too large for key ring attachment, but Cramer does not recite a minimum size and the size of what is attached to a key ring is a personal decision, not a technical limitation. Dependent claim 22 has a similar limitation to claim 10 and the arguments are similar. Appeal 2012-000422 Application 12/338,942 10 CONCLUSIONS OF LAW The rejection of claims 1, 7–12, and 15–21 under 35 U.S.C. § 103(a) as unpatentable over Cramer and Pappas is proper. The rejection of claims 2 and 3 under 35 U.S.C. § 103(a) as unpatentable over Cramer, Pappas, and Senn is proper. The rejection of claims 4–6, 13, 14, and 22 under 35 U.S.C. § 103(a) as unpatentable over Cramer, Pappas, and Official Notice is proper. DECISION The rejection of claims 1–22 is 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED rvb Copy with citationCopy as parenthetical citation