Ex Parte Barni

Patent Trial and Appeal Board

Mar 22, 2016

10777052 (P.T.A.B. Mar. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
101777,052 0210912004
49443 7590 03/24/2016
Pearl Cohen Zedek Latzer Baratz LLP
1500 Broadway
12th Floor
New York, NY 10036
FIRST NAMED INVENTOR
Meghan M. Barni
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P-79275-US 3905
EXAMINER
JARRETT, SCOTT L
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
03/24/2016 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):
USPTO@PearlCohen.com
Arch-USPTO@PearlCohen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEGHAN M. BARNI
Appeal2013-010853
Application 10/777 ,052
Technology Center 3600
Before: MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and
MICHAEL W. KIM, Administrative Patent Judges.
FISCHETTI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE1
Appellant seeks our review under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1 and 5-10. We affirm.
1 The Appellant identifies IEX Corp. as the real party in interest. (App. Br.
1 ).
Appeal2013-010853
Application 10/777 ,052
THE CLAIMED INVENTION
Appellant claimed invention relates generally to employee scheduling
to enable employees to trade scheduled shifts. (Spec. 1, 11. 4---6). Claim 1 is
illustrative of the claimed subject matter:
1. A workforce management method operative in a
computer network for enabling entities to trade work schedules,
where the entities are contact center agents that report to a
supervisor, the method comprising:
configuring, using a machine having a hardware element,
a supervisor display by which the supervisor selects which
individual agents are permitted to trade work schedules, and by
which the supervisor specifies a set of rules that allow work
schedules to be traded, the set of rules including at least a first
rule configured by the supervisor and that identifies a maximum
number of time units per a given time period that an agent is
permitted to work as a result of a trade, and a second rule
configured by the supervisor and that identifies a time period into
which a work schedule to be traded must fit into in order to
satisfy a trade;
if a first agent is permitted to trade a work schedule as
indicated by the supervisor selection, offering for trade a first
work schedule, the first work schedule being offered by the first
agent and having associated therewith a second work schedule as
defined by the first agent that the first agent is willing to accept
in trade for the first work schedule;
if a second agent is permitted to trade a work schedule as
indicated by the supervisor selection and if the trade offered by
the first agent does not violate either the first rule or the second
rule as configured by the supervisor, accepting in trade, by the
second agent, the first agent's first work schedule; and
inhibiting, using a machine having a hardware element,
trading of work schedules by the first and second agents if (i) the
first agent is not permitted to trade a work schedule as indicated
by the supervisor selection; (ii) the second agent is not permitted
to trade a work schedule as indicated by the supervisor selection,
or (iii) the first and second agents are permitted to trade a work
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Application 10/777 ,052
schedule as indicated by the supervisor selection but the trade
violates either the first rule or the second rule as configured by
the supervisor.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Narasimhan US 2005/0096962 Al May 5, 2005
"Scheduling," IEX web site (retrieved from
http://web.archive.org/web/20021101081307/http://www.iex.com1Totalview/
scheduling.html on Jan. 19, 2012) (hereinafter "IEX A").
"Scheduling," IEX web site (retrieved from
http:! /web.archive.org/web/20030302152731/http:/
/www.iex.com1Totalview/scheduling.htm; et. al.; on Jan. 19; 2012)
(hereinafter "IEX B").
REJECTIONS
The following rejections are before us for review.
The Examiner rejected claims 1and5-10 under 35 U.S.C. § 102(b)
"based upon a public use or sale of the invention," as evidenced by IEX A
andIEXB.
The Examiner rejected claims 1 and 5-10 under 35 U.S.C. § 103(a) as
unpatentable over Narasimhan and Official Notice.
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FINDINGS OF FACT
We find the following facts by a preponderance of the evidence.
1. Narasimhan discloses a computerized management interface "for
planning and managing staffing assignments." (Para. 34).
2. Narasimhan discloses a system where "workers can submit trade
requests and/or offers 522." (Para. 46).
3. Narasimhan discloses "offer and acceptance can be forwarded to
management for review and approval." (Para. 48).
4. Narasimhan discloses offers for trades may be entered "but later
rejected by management 122. For example, offers to work more
overtime than allowed by applicable rules, agreements, policies, etc.,
can be rejected." (Para. 47).
5. Narasimhan discloses:
A trade request can include shift changes a worker is willing to
make. The changes can include trading shift times, changing
work hours, adding work hours, deleting work hours, and/ or
other changes consistent with business rules 204, shift rules 304,
labor agreements, etc. Trade posting module 524 can reject
requests and/ or offers for changes inconsistent with such rules,
agreements, etc.
(Para. 46).
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ANALYSIS
Prior Use or Sale Rejection
Appellant argues that the Examiner has failed to establish a prima
facie case of prior use2 of the claimed invention "because the Examiner has
not established either that the 2002 Web pages meet all the elements of any
claim, or that the 2003 Web pages meet all elements of any claim." (Appeal
Br. 11).
We agree with the Appellant and find that the collection of "IEX" web
pages falls short of disclosing all the claimed limitations. 3 In particular, for
the claimed "first rule," which relates to a maximum number of time units
per a given time period that an agent is permitted to work, the Examiner
finds this is disclosed by IEX A (2002) as minimum and maximum limits on
consecutive days on or off, and is disclosed by IEX B (2003) as start and end
times for shifts. (Final Act. 17). Neither of these, however, establishes that
the IEX product included a rule for maximum time worked per period, as
claimed. An employee may be restricted on a number of days off permitted,
but this would not necessarily affect maximum time units worked per period.
Also, shift start and end times also do not directly affect how many hours a
person may work per period, because work time and time off together do not
account for all available time in a period.
2 The rejection of claims 1, and 5-10 was made under 35 U.S.C. § 102(b)
based on prior use or sale more than one year before the filing date of the
invention, relying on two references, named "IEX A (2002)" and "IEX B
(2003)". (Final Act. 15).
3 Since we find that the IEX web pages fail to disclose the claim elements,
we do not address the issues related to the dates of public use evidenced by
these documents relative to the filing date of the application on appeal.
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Application 10/777 ,052
We thus determine that the Examiner has failed to establish a prima
facie case of prior use or sale more than one year before the filing date of the
claimed invention.
Rejection under 35 U.S.C. § 103(a)
Initially, we note that Appellant argues independent claims 1 and 10
together as a group. (App. Br. 20). Correspondingly, we select
representative claim 1 to decide the appeal of these claims, with the
remaining claim 10 standing or falling with claim 1. Appellant does not
provide a substantive argument as to the separate patentability of claims 5-9
that depend from claim 1. Thus claims 5-10 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(l)(vii).
Appellant argues the supervisor interface and "the first and second
rules in claim 1, and at least elements (d)-(t) in claim 10, are nowhere found
in any of the cited references." (Appeal Br. 20-22; see also Reply Br. 13-
14). We are not persuaded by Appellant's argument.
Narasimhan discloses a work scheduling system with the capability
for workers to trade work schedules. (FF 1, 2). Narasimhan discloses a
supervisor interface to enter rules and permit or deny trades. (FF 3, 4).
Narasimhan further discloses trades may be rejected by management for
"more overtime than allowed." (FF 4).
The ordinary artisan would recognize that managing work hours to
avoid excessive overtime expenses is a well-known management practice,
and Narasimhan thus meets the claim language of "a first rule configured by
the supervisor and that identifies a maximum number of time units per a
given time period that an agent is permitted to work as a result of a trade," as
claimed. The ordinary artisan would also recognize that shifts typically have
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defined starting and ending times, such that trades for partial or entire shifts
would need to comply with defined shift boundaries (rules governing length
of shifts are often set by labor laws), and would thus recognize that
Narasimhan' s shift trading mechanisms (FF 5) meet the claim language of "a
second rule configured by the supervisor and that identifies a time period
into which a work schedule to be traded must fit into in order to satisfy a
trade," as claimed.
We thus affirm the rejection of claim 1under35 U.S.C. § 103(a), as
well as claims 5-10.
Since our analysis above is deemed complete without need of using
the Official Notice relied on by the Examiner (Final 28), our reasoning thus
differs from that of the Examiner, so we denominate our decision as a new
ground of rejection under 37 C.F.R. § 41.50(b).
CONCLUSIONS OF LAW
The Examiner erred in rejecting claims 1 and 5-10 under 35 U.S.C.
§ 102(b) for prior use or sale more than one year prior to filing.
The Examiner did not err in rejecting claims 1 and 5-10 under 3 5
U.S.C. § 103(a).
DECISION
For the above reasons, the Examiner's rejection of claims 1 and 5-10
is AFFIRMED.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b) (2008). 37 C.F.R. § 41.50(b) provides "[a] new ground of
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rejection pursuant to this paragraph shall not be considered final for judicial
review."
37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the proceeding will be remanded
to the examiner . . . .
(2) Request rehearing. Request that the proceeding be
reheard under§ 41.52 by the Board upon the same record ....
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)(l )(iv).
AFFIRMED; 37 C.F.R. § 41.50(b)
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