Ex Parte Quintus et al

Patent Trial and Appeal Board

Jan 28, 2014

10328941 (P.T.A.B. Jan. 28, 2014)

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.
10/328,941 12/24/2002 Thomas Quintus 6741P030 6417
45062 7590 01/28/2014
SAP/BSTZ
BLAKELY SOKOLOFF TAYLOR & ZAFMAN
1279 Oakmead Parkway
Sunnyvale, CA 94085-4040
EXAMINER
PATS, JUSTIN
ART UNIT PAPER NUMBER
3624
MAIL DATE DELIVERY MODE
01/28/2014 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 1
___________ 2
3
BEFORE THE PATENT TRIAL AND APPEAL BOARD 4
___________ 5
6
Ex parte THOMAS QUINTUS, 7
SVEN KRUPPEL-BERNDT, 8
and MORITZ THOMAS 9
___________ 10
11
Appeal 2011-011792 12
Application 10/328,941 13
Technology Center 3600 14
___________ 15
16
17
Before ANTON W. FETTING, MEREDITH C. PETRAVICK, and 18
PHILIP J. HOFFMANN, Administrative Patent Judges. 19
FETTING, Administrative Patent Judge. 20
DECISION ON APPEAL 21
Appeal 2011-011792
Application 10/328,941
2

STATEMENT OF THE CASE1 1
Thomas Quintus, Sven Kruppel-Berndt, and Moritz Thomas 2
(Appellants) seek review under 35 U.S.C. § 134 of a non-final rejection of 3
claims 1-20, the only claims pending in the application on appeal. We have 4
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 5
The Appellants invented techniques for flexible maintenance planning 6
(Spec., para. [0001]). 7
An understanding of the invention can be derived from a reading of 8
exemplary claim 1, which is reproduced below [bracketed matter and some 9
paragraphing added]. 10
1. A method comprising: 11
[1] defining a first planning object having 12
a first value associated with 13
an out of compliance date, 14
a second value associated with 15
a maximum utilization date, 16
the second value preceding the first value, 17
a third value associated with 18
a minimum utilization date, 19
the third value preceding the second value, 20
and 21
a fourth value associated with 22
a target utilization date, 23
the fourth value 24

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed May 2, 2011) and Reply Brief (“Reply Br.,” filed June 28, 2011),
and the Examiner’s Answer (“Ans.,” mailed May 24, 2011).
Appeal 2011-011792
Application 10/328,941

being between the second value and the 1
third value 2
and 3
indicating when a maintenance demand is 4
due; 5
[2] prioritizing each of a plurality of slots 6
in terms of the second value, the third value, and the 7
fourth value, 8
each of the plurality of slots including a start date 9
between the second value and the third value, 10
inclusive; 11
and 12
[3] scheduling the maintenance demand 13
to a slot 14
in the plurality of slots 15
of highest priority 16
by a planning engine. 17
The Examiner relies upon the following prior art: 18
Babayev US 5,615,121 Mar. 25, 1997
Fox US 5,890,134 Mar. 30, 1999
Pyron, Special Edition Using Microsoft Project 2000, Que Publishing, 1-19
19 (Sep. 27, 2000) (hereinafter “Pyron”). 20
Alfares, Aircraft maintenance workforce scheduling: A case study, 21
Journal of Quality in Maintenance Engineering, Vol. 5, No.2, 78-88 22
(1999) (hereinafter “Alfares”). 23
Karsai et al., MICANTS, 1-36 (December 2001)(hereinafter “Karsai”). 24
Claims 1-4, 9-12, and 17-20 stand rejected under 35 U.S.C. § 103(a) as 25
unpatentable over Fox and a public use of Microsoft Project 2000, as 26
evidenced by Pyron. 27
Appeal 2011-011792
Application 10/328,941

Claims 5, 6, 13, and 14 stand rejected under 35 U.S.C. § 103(a) as 1
unpatentable over Fox, a public use of Microsoft Project 2000, as evidenced 2
by Pyron, and Alfares. 3
Claims 7 and 15 stand rejected under 35 U.S.C. § 103(a) as unpatentable 4
over Fox, a public use of Microsoft Project 2000, as evidenced by Pyron, 5
and Babayev. 6
Claims 8 and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable 7
over Fox, a public use of Microsoft Project 2000, as evidenced by Pyron, 8
and a public use of MAPLANT, as evidenced by Karsai. 9
ISSUES 10
The issues of obviousness turn primarily on whether the claims recite an 11
algorithm that uses three values in the same operation, and if not, then 12
whether the recited step may be performed by sub-modules using one value 13
at a time. 14
FACTS PERTINENT TO THE ISSUES 15
The following enumerated Findings of Fact (FF) are believed to be 16
supported by a preponderance of the evidence. 17
Facts Related to the Prior Art 18
Fox 19
01. Fox is directed to a computerized scheduler and to an improved 20
method or algorithm for efficiently defining and/or optimizing the 21
performance schedule of the multiple tasks necessary to the 22
accomplishment of a project, particularly a manufacturing project, 23
taking both resource and precedence constraints into account. Fox 24
1:4-10. 25
Appeal 2011-011792
Application 10/328,941

02. A multiple task schedule, initially formulated by the scheduling 1
program, is subjected to the additional processing steps of: setting 2
a completion time boundary that is as late or later than the latest 3
completion time of any of the tasks; setting a start time boundary 4
that is no later than the earliest start time of any of those tasks; 5
preparing a chronological listing by completion time for the tasks, 6
a sort, whereby the tasks are assembled in a different order than 7
before; starting with the task having the latest completion time and 8
continuing through the chronological listing in reverse 9
chronological completion time order, “right shifting” each task in 10
time, that is rescheduling each task in the chronological listing to a 11
new completion time that is no later than and as close to the 12
completion boundary time as is permissible without violation of 13
any resource constraint, to create a first revised temporary listing 14
of tasks arranged in the same order found in the chronological 15
listing; preparing a second chronological listing by start time for 16
each task in the revised listing, another sort; and, starting with the 17
task in the second chronological listing having the earliest start 18
time and continuing in chronological order through the remaining 19
tasks, rescheduling each task to a new start time that is no earlier 20
than and as close to said commencement time boundary as is 21
permissible without violation of any resource constraint, whereby 22
each task is again assigned new start and completion times, but 23
remain arranged in the same order found in said second 24
chronological listing, to thereby formulate the improved or 25
optimized schedule. Fox 3:31-59. 26
Appeal 2011-011792
Application 10/328,941

03. The underlying theory to the shifting procedure is recognized as 1
being intuitive. In general, the first tasks placed on a schedule 2
benefit from the flexibility in their choice of time and resources. 3
Tasks placed on the schedule later in the scheduling process are 4
left with only the times and resources that earlier activities did not 5
use. Fox 13:46-51. 6
04. The sort procedures combined with the right and left phases, is 7
believed to implicitly give higher priority to the right activities, 8
while constructing the right shift and left shift schedules. When a 9
schedule is built in the forward direction every task is scheduled to 10
start and finish as early as possible. Because of that, critical 11
activities in the left part of the schedule are crowded together with 12
many other non-critical activities. But the right-most activities on 13
the schedule are found in that part of the schedule, because they 14
follow critical activities in the left part of the schedule, and most 15
are themselves critical. Fox 13:52-62. 16
05. In the right shift phase, these right-most critical activities are 17
effectively given first priority in building the new right-shifted 18
schedule. By similar analysis, the left-most activities in the right-19
shifted schedule are critical activities with little slack time and 20
they are given first priority in the left shift phase. Between the 21
two passes, the present algorithm gives first priority to the 22
placement of critical activities at the right and then the left ends of 23
the schedule, while allowing non-critical activities to shift freely 24
in between. The foregoing also allows one to understand why 25
Appeal 2011-011792
Application 10/328,941

using the additional sort key of slack time generally improves the 1
performance of the algorithm. Fox 13:53 – 14:8. 2
06. From among the multiplicity of tasks in the project, the 3
formulated schedule contains a task that begins no earlier than any 4
other task in the project, the earliest start time. The schedule also 5
contains another task that ends no later than any other task in the 6
project, the latest completion time. The difference between those 7
two times defines the cycle time for the project. Whatever the 8
choice made for the basic scheduling program, it is assumed that 9
the program produced has a “good” cycle time, one that appears 10
reasonable, and that the scheduling program had a reasonable 11
execution time; in other words it is a good quality program. 12
Given a “good” cycle time, the improvement makes a better cycle 13
time, thereby improving upon quality. The foregoing is the state 14
achieved by existing scheduling programs. There is no way of 15
determining how “good” a schedule was achieved, unless one is 16
able to demonstrate that another schedule can be created in a 17
reasonable time that has a shorter cycle time. The only methods 18
for such demonstration are to either use another program to 19
construct a schedule to see if another algorithm might produce a 20
better schedule, or to reorder the input data to see if another order 21
for processing the given tasks might produce a better schedule. 22
Fox 7:15-37. 23
07. In the next step the computer identifies the latest completion time 24
for any of the tasks listed in the schedule and sets that completion 25
time C, as the right boundary, Cc; and to identify the earliest start 26
Appeal 2011-011792
Application 10/328,941

time for any of the listed tasks in that preliminary schedule and set 1
that start time S as the left boundary Ss. The foregoing task listing 2
S1 lists the tasks in no particular order, since such ordering is not 3
required of a scheduling program and, hence, is not required by 4
the known scheduling program upon which the present algorithms 5
are imposed. The program sorts the listed tasks in chronological 6
order by completion time C, to produce a chronological listing by 7
completion time, S2. Fox 7:38-67. 8
Pyron 9
08. Pyron is directed to describing Microsoft Project 2000. Pyron, 10
Title. 11
09. Pyron describes using a project manager such as Microsoft 12
Project 2000 for periodic maintenance schedules. Pyron, p. 18. 13
ANALYSIS 14
We are not persuaded by the Appellants’ argument that 15
In the present case, claims 1, 9, and 17 clearly recite that 16
slots are prioritized in terms of a second value, a third value, 17
and a fourth value. By using the inclusive term “and,” the 18
claims unambiguously recite that each of the second, third, and 19
fourth values are used to prioritize slots in a single step. Since 20
the claims plainly recite prioritization of slots based on three 21
values in a single step, the Examiner has unreasonably and 22
improperly interpreted the claims to recite prioritizing slots 23
based on three values using three steps as this interpretation 24
deviates from the plain English meaning of the claims. See § 25
2111. 26
Moreover, Fox fails to disclose “prioritizing each of a 27
plurality of slots in terms of the second value, the third value, 28
and the fourth value” (i.e. in a single step) as recited in claims 29
1, 9, and 17, rather prioritization in Fox is performed based 30
Appeal 2011-011792
Application 10/328,941

only on a single value at a time. Specifically, prioritization in 1
Fox can only take into account a single value. 2
App. Br. 8. Fox, being a project scheduling invention, clearly prioritizes the 3
timing (slots) of its tasks based on the earliest and latest start dates and on 4
the amount of time each task takes and lags. In the case of a periodic 5
maintenance task, suggested by Pyron, this lag would necessarily correspond 6
to Pyron’s average maintenance periods. Thus, Fox and Pyron clearly 7
describe the last three values in the first step. We find the first value in the 8
first step is not used after being identified, so Pyron’s out of compliance 9
date, subsequent to the last three dates, is within the scope of this first value. 10
Appellants therefore must argue that Fox’s prioritization algorithm is not 11
within the scope of limitation [2], viz. “prioritizing each of a plurality of 12
slots in terms of the second value, the third value, and the fourth value, each 13
of the plurality of slots including a start date between the second value and 14
the third value, inclusive.” Appellants argue this limitation requires all three 15
values be used in a single step. 16
This argument may appear superficially correct at first glance, but 17
overlooks the well-known fact that software steps are composed of further 18
sub-steps, i.e., they are modular. In fact software can generally only be 19
executed one primitive instruction at a time. Therefore, we look to whether 20
limitation [2] recites any particular algorithm as to how the three values 21
must be used to prioritize the slots. We find that no algorithm is recited in 22
limitation [2]. Thus, prioritizing in three sequential sub-modules to produce 23
the step in limitation [2] is within the scope of limitation [2]. 24
We note that Appellants argue further that the sequential nature of Fox 25
effectively undoes the results of each prior operation. Again, as no specific 26
algorithm is recited, it is sufficient that the steps performed by Fox use the 27
Appeal 2011-011792
Application 10/328,941

three values. Whether having used them the results of two of them are 1
effectively undone is irrelevant, as the limitation simply recites prioritizing 2
in terms of the three values. We find in particular that the verb “prioritizing” 3
is the operation of the step, not the result of the step, which would be a noun. 4
As to claim 4, reciting “determining the fourth value based on an interval 5
and an end date of a previously scheduled maintenance order,” as the 6
Examiner found at Answer 9-10, maintenance schedules, being periodic, 7
inherently are based on maintenance intervals and the prior maintenance 8
date, either scheduled or actual depending on context. 9
As to claim 8, reciting “wherein ratios of the second value to the first 10
value, the third value to the first value and the fourth value to the first value 11
are fixed,” as the Examiner found at Answer 14, maintenance schedules, 12
being periodic, inherently are fixed in expected span. The Examiner cited an 13
example of airplane maintenance as one having minimum and maximum 14
time frames within which maintenance is to occur and an overdue value. In 15
such a case, the ratio of each of minimum, expected, and maximum to 16
overdue would be expected to remain constant, again because of the periodic 17
nature of maintenance. 18
CONCLUSIONS OF LAW 19
The rejection of claims 1-4, 9-12, and 17-20 under 35 U.S.C. § 103(a) as 20
unpatentable over Fox and a public use of Microsoft Project 2000, as 21
evidenced by Pyron is proper. 22
The rejection of claims 5, 6, 13, and 14 under 35 U.S.C. § 103(a) as 23
unpatentable over Fox, a public use of Microsoft Project 2000, as evidenced 24
by Pyron, and Alfares is proper. 25
Appeal 2011-011792
Application 10/328,941

The rejection of claims 7 and 15 under 35 U.S.C. § 103(a) as 1
unpatentable over Fox, a public use of Microsoft Project 2000, as evidenced 2
by Pyron, and Babayev is proper. 3
The rejection of claims 8 and 16 under 35 U.S.C. § 103(a) as 4
unpatentable over Fox, a public use of Microsoft Project 2000, as evidenced 5
by Pyron, and a public use of MAPLANT, as evidenced by Karsai is proper. 6
DECISION 7
The rejection of claims 1-20 is affirmed. 8
No time period for taking any subsequent action in connection with this 9
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 10
§ 1.136(a)(1)(iv) (2011). 11
12
AFFIRMED 13
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mls 21