Ex Parte Thompson et al

Board of Patent Appeals and Interferences

Dec 13, 2011

09723319 (B.P.A.I. Dec. 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.
09/723,319 11/27/2000 Robert Thompson 723-984 5531
27562 7590 12/13/2011
NIXON & VANDERHYE, P.C.
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
CHONG CRUZ, NADJA N
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
12/13/2011 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
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT THOMPSON, MARK DEBELACK, TIELIN XU,
MORGAN SKINNER, and RICHARD STORMS
___________

Appeal 2010-007897
Application 09/723,319
Technology Center 3600
____________

Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and
MEREDITH C. PETRAVICK, Administrative Patent Judges.

PETRAVICK, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Robert Thompson et al. (Appellants) seek our review under 35 U.S.C.
§ 134 (2002) of the final rejection of claims 1-11, 13-14, 17-30, 32-43, and
46. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART. 1

THE INVENTION
This invention is “a resource management system that manages
worker resources based on factors including work plans input by the
workers.” Spec. 1:9-10.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A resource management system comprising:
a work plan builder module configured to build
work plans for workers, said work plan builder
module being configured to allow each worker to
specify, for each of a plurality of different time
periods during each of one or more workdays, one
of a plurality of different activities that the worker
plans to perform during that time period, wherein
said work plan builder module is configured to
permit each worker to specify by selection from a
displayed list of work activities two or more
different work activities that the worker plans to

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed Dec. 28, 2009) and Reply Brief (“Reply Br.,” filed Apr. 19,
2010), and the Examiner’s Answer (“Ans.,” mailed Feb. 17, 2010).

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perform during different time periods of the same
workday;
a computer-accessible memory for storing the
work plans built by said work plan builder module;
and
a forecast module for comparing a service level
forecasted to be needed for different work
activities and a service level corresponding to the
workers that plan to engage in these different work
activities as specified in the work plans and
permitting changes to the work activities specified
in the work plans for one or more workers based
on the comparing.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Amin
O’Brien
Dellevi
US 6,208,340 B1
US 6,587,831 B1
US 6,957,188 B1
Mar. 27, 2001
Jul. 1, 2003
Oct. 18, 2005
Moseley, Lonnie E., et al., Mastering Microsoft Office 97
Professional Edition. [Hereinafter, Moseley.]

The Examiner took Official Notice “that it is old and well known in
graphical user interface art and to one of ordinary skill in the art to display a
list (e.g., a drop-down widget) with a plurality of choices (e.g., work
activities) as evidenced by Amin et al., (US 6,208,340 B1) in Figures 3 and
4 which… illustrates a drop-down widget that allow[s] a user to select
multiple choices from the drop down list.” Ans. 8 and 21.
[Hereinafter, Official Notice I.]
The Examiner took Official Notice “that answering electronic mail
messages and regular mail messages are all well known job activities
performed by workers.” Ans. 9. [Hereinafter, Official Notice II.]
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The Examiner took Official Notice “that it is old and well known in
Human Resources management to communicate to a worker the amount of
leave they have remaining in their work account.” Ans. 11 and 13.
[Hereinafter, Official Notice III.]
The Examiner took Official Notice that “it is well known that an
employee must specify to an employer his/her work plans by a particular
deadline.” Ans. 15. [Hereinafter, Official Notice IV.]
The Examiner took Official Notice “that wireless devices, kiosks, and
handheld computing devices were all well-known remote terminals
connectible to a communications network at the time of the invention.” Ans.
23. [Hereinafter, Official Notice V.]

The following rejection is before us for review:
1. Claims 1-11, 13-14, 17-30, 32-43, and 46 are rejected under 35
U.S.C. § 103(a) as being unpatentable over O’Brien, Dellevi,
Moseley, Official Notice I, evidenced by Amin, and Official
Notice II-V.

ISSUE
The issue is whether claims 1-11, 13-14, 17-30, 32-43, and 46 are
unpatentable under 35 U.S.C. § 103(a) over O’Brien, Dellevi, Moseley,
Official Notice I, evidenced by Amin, and Official Notice II-V.
Specifically, the issue is whether the prior art teaches the limitations recited
in claim 1.

ANALYSIS
Claims 1, 3, 5, 7, 9-11, 14, 17-21, 26- 29, 33-36, 42, 43, and 46
The Appellants argued claims 1, 3, 5, 7, 9-11, 14, 17-21, 26- 29, 33-
36, 42, 43, and 46 as a group. App. Br. 12-19. We select claim 1 as the
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representative claim for this group, and the remaining claims 3, 5, 7, 9-11,
14, 17-21, 26- 29, 33-36, 42, 43, and 46 stand or fall with claim 1. 37
C.F.R. § 41.37(c)(1)(vii) (2010).
To traverse the rejection of claim 1, the Appellants make several
arguments. See App. Br. 12-19.
First, the Appellants argue that the combination of O’Brien, Dellevi,
Moseley, and Official Notice I-V, supported by Amin, does not disclose all
of the recited functional limitations of claim 1. For example, Claim 1 states:
said work plan builder module being configured to
allow each worker to specify, for each of a
plurality of different time periods during each of
one or more workdays, one of a plurality of
different activities that the worker plans to perform
during that time period.
(Emphasis added.)
The Appellants argue that O’Brien does not teach the workers
specifying the activities in which they plan to engage during a plurality of
time periods. App. Br. 15. However, the Appellants’ argument is not
commensurate with the scope of the claim. This limitation is more broadly
directed to a work plan builder module that is configured to allow the
workers to specify different activities. That is, claim 1 only requires that the
work plan builder module has a structure that allows functions to occur, one
of which is to allow the workers to specify the activities, and hence does not
limit the claim to the degree argued by Appellants.
Similarly, claim 1 recites that the work plan builder module “is
configured to permit each worker to specify by selection from a displayed
list of work activities.” Again, the Appellants seem to argue that the prior
art does not disclose each worker to specifying a work activity by selection
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from a displayed list of work activities. See App. Br. 13. However, claim 1
only requires that the work plan builder module has a structure that permits
this selection from the displayed list. Therefore, we find this argument
unpersuasive.
Second, the Appellants argue that none of the references teach the
forecast modules for comparing a service level forecast recited in claim 1.
App. Br. 16 and Reply Br. 2. Specifically, the Appellants argue that Dellevi
does not teach “a forecasted service level or any comparisons to such a
level.” App. Br. 16. However, the Examiner relies on O’Brien to teach this
limitation. See Answer 4-5. The Appellants do not address the Examiner’s
findings as to the teachings of O’Brien nor do Appellants address the
Examiner’s finding that the combination of O’Brien and Dellevi teaches the
entire comparing step. Therefore, we are not persuaded by this argument.
Finally, the Appellants argue that the Examiner’s taking of Official
Notice I is improper. App. Br. 17-18. We are not persuaded by this
argument because: 1) the Appellants’ argument is not an adequate traversal
and 2) the Appellants’ argument is untimely.
The Appellants’ argument does not traverse what the Examiner
regards as knowledge that would have been generally available to one of
ordinary skill in the art at the time the invention was made. Even if one
were to interpret Appellants’ arguments and comments as constituting a
traverse, Appellants’ arguments and comments do not appear to constitute an
adequate traverse because Appellants have not specifically pointed out the
supposed errors in the Examiner's action, which would include stating why
the noticed fact is not considered to be common knowledge or well-known
in the art. 37 C.F.R. § 1.104(d)(2), MPEP § 707.07(a). An adequate
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traverse must contain adequate information or argument to create on its face
a reasonable doubt regarding the circumstances justifying Examiner's notice
of what is well known to one of ordinary skill in the art. In re Boon, 439
F.2d 724, 728 (CCPA 1971).
Also, we agree with the Examiner (Answer 33) that the Appellants did
not seasonably traverse the Examiner’s taking of Official Notice, and,
therefore, the object of the Official Notice is taken to be admitted prior art.
In re Chevenard, 139 F.2d 711, 713 (CCPA 1943) (“In the absence of
anything in the record to contradict the examiner's holding, and in the
absence of any demand by appellant for the examiner to produce authority
for his statement, we will not consider this contention.”).
For the reasons above, we find the Appellants’ argument
unpersuasive, and we affirm the rejection of claims 1, 3, 5, 7, 9-11, 14, 17-
21, 26- 29, 33-36, 42, 43, and 46 as being unpatentable over O’Brien,
Dellevi, Moseley, and Official Notice I-V, supported by Amin.

Claims 2, 4, 6, 22, 23, and 24
To traverse the rejection of claims 2, 4, 6, 22, 23, and 24, the
Appellants traverse the Examiner’s taking of Official Notices II and III. The
Appellants again argue that the Examiner has improperly taken Official
Notice II. App. Br. 20-22. For the same reasons set forth above in regards
to the traversal of Official Notice I, we are not persuaded by this argument.
Accordingly, the rejection of claims 2, 4, 6, 22, 23 and 24 under 35 U.S.C. §
103(a) is affirmed.

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Claim 8
To traverse the rejection of claim 8, the Appellants argue that the
Examiner has not supplied any evidence to support the taking of Official
Notice IV and has merely asserted that claim 8 is obvious. App. Br. 22.
However, the Appellants’ argument does not address the Examiner’s
taking of Official Notice IV (see Answer 15). In as much as the Appellants’
argument may be considered a traversal of Official Notice IV, we find the
Appellants’ traversal inadequate for the same reasons as discussed above
with regards to Official Notice I. Therefore, we find the Appellants’
argument unpersuasive.
Accordingly, the rejection of claim 8 under 35 U.S.C. § 103(a) is
affirmed.

Claims 13 and 32
Claim 13 recites “said forecast module is configured to generate a
graphical display indicative of the comparison of the work plans and the
forecasted needs.” Claim 32 recites a similar limitation. The Appellants
argue that the portions of O’Brien, cited by the Examiner, fail to teach “a
graphical display” as recited in these claims. App. Br. 23.
However, the Appellants’ argument is not commensurate with the
scope of these claims. Claim 13 does not require a graphical display but
instead is directed to the structure of a forecast module. Since the
Appellants fail to argue the differences in the structure of the forecast
module required by claim 13 and the structure disclosed in the prior art, we
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find the Appellants’ argument unpersuasive. Accordingly, the rejection of
claims 13 and 32 under 35 U.S.C. § 103(a) is affirmed.

Claim 25
The Appellants argue that the cited portions of O’Brien do not
disclose “a worker generating a default work plan, much less creating a new
plan by modifying such a default plan.” App. Br. 23.
Again, the Appellants’ argument is not commensurate with the scope
of the claims. Claim 25 only requires that the work plan builder module
enables each worker to generate a default plan or a modified default work
plan. Therefore, we find the Appellants’ argument unpersuasive.
Accordingly, the rejection of claim 25 under 35 U.S.C. § 103(a) is
affirmed.

Claim 30
The Appellants argue that the cited portions of O’Brien fail to teach
the “real-time status module for providing real-time statistics” as recited in
claim 30. App. Br. 24. In the rejection, the Examiner cites column 5, lines
10-37 and lines 50-67 and column 6, lines 1-25 and lines 44-65. Ans. 23
and 37. We agree with the Appellants (App. Br. 24) that nothing in these
cited passages teaches this limitation. Accordingly, the rejection of claim 30
under 35 U.S.C. § 103(a) is reversed.

Claims 37-41
The Appellants argue that the cited portions of O’Brien fail to teach
the “current day activity monitor module for providing a real-time
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comparison” as recited in claim 37. App. Br. 24. In the rejection, the
Examiner cites column 5, lines 10-37 and lines 50-67 and column 6, lines 1-
25 and lines 44-65. Ans. 24 and 38. We agree with the Appellants (App.
Br. 24) that nothing in these cited passages teaches this limitation.
Accordingly, the rejection of claim 37 and claims 38-41, dependent thereon,
under 35 U.S.C. § 103(a) is reversed.

DECISION
The decision of the Examiner to reject claims 1-11, 13-14, 17-29, 32-
38, 42, 43, and 46 is affirmed and to reject claims 30 and 37-41 is reversed.
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) (2010).
AFFIRMED-IN-PART

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