The Boeing CompanyDownload PDFPatent Trials and Appeals BoardApr 7, 20212019006904 (P.T.A.B. Apr. 7, 2021) Copy Citation 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. 14/541,633 11/14/2014 William Charles Beavin 14-1382-US-NP 6634 63759 7590 04/07/2021 DUKE W. YEE YEE & ASSOCIATES, P.C. P.O. BOX 6669 MCKINNEY, TX 75071 EXAMINER YUN, CARINA ART UNIT PAPER NUMBER 2194 NOTIFICATION DATE DELIVERY MODE 04/07/2021 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): patentadmin@boeing.com ptonotifs@yeeiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILLIAM CHARLES BEAVIN, MARK DAVID SCHULTE, and MICHAEL E. CROW Appeal 2019-006904 Application 14/541,633 Technology Center 2100 Before JOSEPH L. DIXON, ERIC S. FRAHM, and JOHNNY A. KUMAR, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–10 and 12–20. See Final Act. 1. Claim 11 is canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest as The Boeing Company. Appeal Br. 2. Appeal 2019-006904 Application 14/541,633 2 CLAIMED SUBJECT MATTER The claims are directed to lean product modeling systems (LPM) and methods. LPM system includes: a plurality of modeling objects representing multiple perspectives of the product, a plurality of corresponding modeling object properties identifying characteristics of those product modeling objects which are used to configure product simulations, and a plurality of corresponding modeling object property data items that define those characteristics and are reflected in product simulations and analyses. All product modeling objects may be linked in an integrated product knowledge model that reflects ontological characteristics of the product or the application as a service and a corresponding operational environment. The integrated product knowledge model defines an authoritative source for any specific corresponding modeling object within the plurality of corresponding modeling objects. Abstr. Claim 10, reproduced below, is illustrative of the claimed subject matter: 10. A method for manufacturing a product or implementing an application as a service, using a lean product modeling analysis and simulation system, the method comprising: providing input to at least one non-transitory computer readable storage medium via manipulating at least one physical input device, the input comprising: a plurality of modeling objects having a plurality of corresponding modeling object properties and a plurality of corresponding object property data items, the plurality of modeling objects representing multiple perspectives of the product or the application as the service, the plurality of corresponding modeling object properties identifying characteristics of those product modeling objects which are used to configure product simulations, and wherein the plurality of Appeal 2019-006904 Application 14/541,633 3 modeling objects, at least some of the plurality of corresponding modeling object properties, and the plurality of corresponding object property data items are tailored for each lifecycle phase of the product or the application as the service; an integrated product knowledge model that ontologically defines the product or the application as the service, wherein at least some of the plurality of modeling objects are linked to the integrated product knowledge model, wherein a plurality of tools are stored in the at least one non-transitory computer readable storage medium, wherein each tool from the plurality of tools is configured to interact with multiple objects of the integrated product knowledge model and conflicts between different tools in the plurality of tools are avoided because each tool deals with a single ontology within the integrated product knowledge model, and wherein the integrated product knowledge model identifies a corresponding authoritative source for corresponding modeling objects of the plurality of modeling objects; and manufacturing the product or implementing the application as the service using at least one device based on a product design produced by the lean product modeling analysis and simulation system. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Bulman US 2003/0051255 A1 Mar. 13, 2003 Heller US 2011/0208788 A1 Aug. 25, 2011 Alfassi US 2014/0324393 A1 Oct. 30, 2014 REJECTIONS Claims 10 and 17 stand rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Heller. Final Act. 3. Appeal 2019-006904 Application 14/541,633 4 Claims 1–4, 6–9, 12–15, and 18–20 stand rejected under 35 U.S.C. § 103 as being unpatentable by Heller in view Alfassi. Final Act. 5. Claim 5 stands rejected under 35 U.S.C. § 103 as being unpatentable by Heller, Alfassi, and Bulman. Final Act. 15. Claim 16 stands rejected under 35 U.S.C. § 103 as being unpatentable by Heller and Bulman. Final Act. 16. OPINION 35 U.S.C. § 102(a)(1) “[A]nticipation is a question of fact.” In re Hyatt, 211 F.3d 1367, 1371–72 (Fed. Cir. 2000) (citing Bischoff v. Wethered, 76 U.S. (9 Wall.) 812, 814–15 (1869); In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997)). [U]nless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102. Net MoneyIn, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008). Thus, it is not enough that the prior art reference discloses part of the claimed invention, which an ordinary artisan might supplement to make the whole, or that it includes multiple, distinct teachings that the artisan might somehow combine to achieve the claimed invention. Net MoneyIn, 545 F.3d at 1371 (citation omitted). We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) Appeal 2019-006904 Application 14/541,633 5 (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After considering the argued claims and each of Appellant’s arguments, we are not persuaded of reversible error in the appealed rejections. Appellant does not make separate arguments in support of patentability of any particular claim or claim grouping. Accordingly, the claims subject to each ground of rejection will stand or fall with claim 10. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant contends that the Heller reference does not disclose that each tool from a plurality of tools are configured to interact with multiple objects of an integrated product model where conflicts between the various tools are avoided because each tool deals with a single ontology. Appeal Br. 10. Appellant further contends that the Heller reference does not teach that each ontology access multiple objects and that they inherently are not conflicting with other tools because they are in their own universe relying on paragraphs 107 and 123 of Heller as the Examiner maintains. Appeal Br. 10. Appellant also contends that nothing in these two passages from Heller discuss a tool where an ontology and a tool are not equivalent. Appeal Br. 11. We note that the Examiner actually relies upon “¶ [0107] to ¶ [0123]” rather than just the two paragraphs asserted by Appellant (see Appeal Br. 10) (arguing only paragraphs 107 and 123)) and the Examiner additionally, identified paragraph 112. Ans. 4, 17. Moreover, the Examiner finds that each tool deals with a single ontology, identifying “SAEM deals with Application Extensibility Ontology 1202, and Semantic Integration Model deals with Adaptation Ontology 1208, and Semantic Service Model deals Appeal 2019-006904 Application 14/541,633 6 with Service Ontology 1206.” Ans. 17. The Examiner further finds that “conflicts are avoided because each tool deals with a separate ontology and it is in its own universe or domain. The semantic models (i.e. tools) can interact with different business objects 1214 and 1216 through the business domain ontology.” Ans. 17. We are not persuaded by Appellant’s arguments in the Appeal Brief and Reply Brief as discussed below. It is well settled that, during patent examination, claims must be given their broadest reasonable interpretation consistent with the specification. Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc). The broadest reasonable interpretation standard requires the words of the claims to be given their “broadest reasonable meaning . . . in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Although we interpret claims broadly but reasonably in light of the Specification, we must not import limitations from the Specification into the claims. See Phillips, 415 F.3d at 1323 (citations omitted). Furthermore, “[a]lthough an inventor is indeed free to define the specific terms used to describe his or her invention, this must be done with reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (citing Intellicall, Inc. v. Phonometrics, 952 F.2d 1384, 1387–88 (Fed. Cir. 1992) (“Where an inventor chooses to be his own lexicographer and to give terms uncommon meanings, he must set out his uncommon definition in some manner within the patent disclosure.”)). However, the “prosecution history” should also be Appeal 2019-006904 Application 14/541,633 7 consulted. See Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015). “Even under the broadest reasonable interpretation, the Board’s construction ‘cannot be divorced from the specification and the record evidence.’” Id. (citing In re NTP, Inc., 654 F.3d 1279, 1288 (Fed. Cir. 2011)). Attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); Ex parte Belinne, No. 2009-004693, 2009 WL 2477843, at *3–4 (BPAI Aug. 10, 2009) (informative), available at https://www.uspto.gov/sites/default/files/ip/boards/bpai/decisions/inform/fd0 9004693.pdf; see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). We note that the language of independent claim 10 recites “at least one,” “a plurality of modeling objects,” “a plurality of tools,” but the limitations do not require more than 2 or 3 objects and tools in the integrated product knowledge model. Based upon a broad but reasonable interpretation, the claimed product or service has this limited complexity rather than the complexity of “designing a new commercial jet aircraft may be extremely time intensive and expensive, involving the coordination of potentially thousands of experts.” Spec. ¶ 2. Based upon this interpretation, we agree with the Examiner that the Heller reference discloses the claimed invention. The Examiner identifies Figure 12 of the Heller reference which shows the plurality of models to the meta-model layer containing plural ontologies interfacing to the business domain ontology and the business function ontology and business objects ontology. Ans. 17. Appeal 2019-006904 Application 14/541,633 8 Appellant generally contends that the Heller reference not only does not disclose that each tool from a plurality of tools are configured to interact with multiple objects of an integrated product model where conflicts between the various tools are avoided because each tool deals with a single ontology, but does not even teach or suggest such features. Appeal Br. 11; Reply Br. 2–3. Appellant additionally generally contends that the Examiner mischaracterizes “that ontology means a tool in its own universe/domain, thus Heller teaches the same,” from an Interview Summary, dated September 4, 2018.2 Appeal Br. 11. In this case, we find these attorney arguments and conclusory statements unpersuasive. Appellant has not identified any specific definition of any of the terms in the claims to show error in the Examiner’s factual findings. Appellant further argues that Heller does not disclose (nor teach or suggest) that each tool deals with a single ontology within the integrated product knowledge model and based upon reliance on Appellant’s Specification is an impermissible use of hindsight with the benefit of Appellant’s disclosure. Appeal Br. 12. 2 We note that Appellant’s representative filing the Appeal Brief is not the same representative attending the interview and therefore has no firsthand knowledge of the statements deemed to be mischaracterized. We do not rely upon the Examiner’s statements in our decision, but note that Appellant has not identified any specific definition beyond “Appellant respectfully submits that the definition of ‘ontology’ is with respect to how the term is used within the Appellant’s specification. It is not necessarily the definition of ontology used by Heller.” Appeal Br. 12. Appeal 2019-006904 Application 14/541,633 9 We note that Appellant’s argument regarding impermissible hindsight is not relevant to the anticipation rejection because the rejection is based upon the disclosure of Heller and is not persuasive of error in the Examiner’s finding of anticipation of representative independent claim 10. We note that Appellant does not specifically identify what a “conflict” is and the Summary of the Claimed Subject Matter merely identifies the Specification paragraphs 66, 89 and Figure 14, but the Specification merely repeats similar language without providing any definition or context for “conflicts” to differentiate the claimed invention. Appeal Br. 4–5. Additionally, we note the claim language of independent claim 10 recites a method for manufacturing a product or implementing an application as a service with the use of alternative claim language and the Specification discusses real-world products and services. See Spec. ¶ 42 (“LPM [Lean Product Modeling] systems, methods, and environments may be used with respect to the development of physical products, a tangible process that achieves a tangible result, or to computer implemented software (or a nontransitory computer readable storage medium) that relates to a technical effect being a tangible machine or a physical transformation.”). Therefore, the product, application as a service, objects, and tools are not specifically defined in the Specification or in the express claim language. As a result, Appellant’s argument based on “conflicts” are avoided does not differentiate the claimed invention from the disclosure of the Heller reference. As a result, we find Appellant’s arguments to be general arguments for patentability which are unpersuasive of error in the Examiner’s underlying factual findings and the finding of anticipation of representative Appeal 2019-006904 Application 14/541,633 10 independent claim 10 and dependent claim 17, not separately argued, based upon the Heller reference. 35 U.S.C. § 103 Claims 1–4, 6–9, 11–15, and 18–20 “On appeal to the Board, an applicant can overcome a rejection by showing insufficient evidence of prima facie obviousness or by rebutting the prima facie case with evidence of secondary indicia of nonobviousness.” In re Kahn, 441 F.3d 977, 985–86 (Fed. Cir. 2006) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)). [T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant. After evidence or argument is submitted by the applicant in response, patentability is determined on the totality of the record, by a preponderance of evidence with due consideration to persuasiveness of argument. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “A rejection based on section 103 clearly must rest on a factual basis . . . .” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. “Obviousness may not be established using hindsight or in view of the teachings or suggestions of the inventor.” Para-Ordnance Mfg. v. SGS Importers Int’l, 73 F.3d 1085, 1087 (Fed. Cir. 1995) (citing W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1551, 1553 (Fed. Cir. 1983)). Appeal 2019-006904 Application 14/541,633 11 “The mere fact that the prior art may be modified in the manner suggested by the Examiner does not make the modification obvious unless the prior art suggested the desirability of the modification.” In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (citing In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984)). “It is impermissible to use the claimed invention as an instruction manual or ‘template’ to piece together the teachings of the prior art so that the claimed invention is rendered obvious.” Fritch, 972 F.2 at 1266 (citing In re Gorman, 933 F.2d 982, 987 (Fed. Cir. 1991)). With respect to independent claims 1 and 18, Appellant does not set forth separate arguments for patentability of the independent claims 1 and 18 and presents arguments with respect to independent claim 1. We select independent claim 1 as the representative claim for the group and will address Appellant’s arguments thereto. See 37 C.F.R. § 41.37(c)(1)(iv). As a result, independent claim 18 will stand or fall with representative independent claim 1. Arguments which Appellant could have made but did not make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant sets forth a separate heading for arguments for patentability of dependent claims 5 and 16, but relies upon the arguments advanced with respect to independent claims 1 and 10. With respect to representative independent claim 1, Appellant relies upon the same arguments advanced with respect to independent claim 10, addressed above, that the Heller reference does not disclose that “conflicts between different tools in the plurality of tools are avoided because each tool deals with a single ontology within the integrated product knowledge model,” as addressed above. Appeal Br. 15. Appeal 2019-006904 Application 14/541,633 12 Appellant further argues that Heller is silent with respect to disclosing that each tool in a plurality of tools are configured to interact with multiple objects of an integrated product model where conflicts between the various tools are avoided because each tool deals with a single ontology. Appeal Br. 15. The Examiner further emphasized that “conflicts between different tools in the plurality of tools are avoided because each tool deals with an single ontology within the integrated product knowledge model (see Fig. 12, ¶ [0107] to , ¶ [0123].” Ans. 8; see also Ans. 17–18. Appellant does not address the totality of the sections relied upon by the Examiner and only generally addresses Heller paragraphs 107 and 123. See generally Reply Br. 2–4. Appellant also contends that data artifacts disclosed by Alfassi do not have the “same versatility as the disparate tools,” as recited by claim 1. Appeal Br. 15. We note that the Examiner’s obviousness ground for rejection of claim 1 merely relied upon the Alfassi reference for teaching and suggesting the “at least some corresponding elements of the plurality of disparate tools are linked to at least one corresponding concept in the integrated product knowledge model.”3 Ans. 8. We note that claim 1 does not set forth the claim language “same versatility as the disparate tools” and any argument thereto does not therefore show error in the factual findings or conclusion of obviousness. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellant’s arguments 3 The Examiner also finds that the Heller reference discloses linking objects to the model in the anticipation rejection of independent claim 10. Ans. 4. Appeal 2019-006904 Application 14/541,633 13 fail from the outset because . . . they are not based on limitations appearing in the claims.”); see also In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts . . . are not commensurate with the claim scope and are therefore unpersuasive.”). Appellant discusses paragraph 50 which is directed to Figure 5 of Alfassi, but this paragraph was not applied by the Examiner, and Appellant further contends that Alfassi discloses that each data artifact is linked to a single “object” of the engineering reference model. Appeal Br. 15–16. Appellant also argues that each data artifact in Alfassi may be linked to various engineering reference models which differs from what is recited by claim 1, in the sense that each tool in claim 1 is configured to interact with multiple objects of the same integrated product knowledge model. Appeal Br. 15–16. We also note that Appellant does not specifically address those portions of the Alfassi reference relied upon by the Examiner in the rejection relying upon Figures 6B–6C and paragraphs 52 and 53. Ans. 8. We further note that Appellant merely reiterates that the Alfassi reference does not teach or suggest that “conflicts between different tools in the plurality of tools are avoided because each tool deals with a single ontology within the integrated product knowledge model” as required by claim 1. Appeal Br. 16. But we note that the Examiner relied upon the Heller reference in the grounds of rejection for this portion of the claim. Final Act. 7; Ans. 7. Therefore, Appellant’s argument does not show error in the rejection as applied by the Examiner. As a result, Appellant has not shown error in the Examiner’s factual findings or ultimate conclusion of obviousness of representative independent Appeal 2019-006904 Application 14/541,633 14 claim 1 and independent claim 18 not separately argued and dependent claims 2–4, 6–9, 12–15, 19, and 20. Claims 5 and 16 Appellant relies upon the arguments advanced with respect to independent claims 1 and 10 and does not set forth separate arguments for patentability of claims 5 and 16. Appeal Br. 16–17. As a result, we group claims 5 and 16 as falling with their respective independent claims. CONCLUSION The Examiner’s decision rejecting claims 1–10 and 12–20 is AFFIRMED. Appeal 2019-006904 Application 14/541,633 15 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 10, 17 102(a)(1) Heller 10, 17 1–4, 6–9, 12–15, 18– 20 Heller, Alfassi 1–4, 6–9, 12–15, 18– 20 5 103 Heller, Alfassi, Bulman 5 16 103 Heller, Bulman 16 Overall Outcome 1–10, 12–20 RESPONSE 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). AFFIRMED Copy with citationCopy as parenthetical citation