Ex Parte Balok et al

Patent Trial and Appeal Board

Jun 27, 2016

12138156 (P.T.A.B. Jun. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/138, 156 06/12/2008
28395 7590 06/29/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Rebecca Jean Balok
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.
81173497 8898
EXAMINER
CAMPBELL, SHANNON S
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
06/29/2016 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte REBECCA JEAN BALOK, LINDA MARIE JAKUBOWSKI,
VICTOR JOSEPH KUDYBA, BARDIA MADAN!,
MICHALE CAVARETTA, PAUL MARCHETTI,
KATHLEEN SUE BARNES, and JOHN C. FOREST
Appeal2014-004184
Application 12/138, 156
Technology Center 3600
Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
TARA L. HUTCHINGS, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner's
final decision rejecting claims 1--4, 6-9, 11-19 and 21-23. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
Claim 1 is illustrative:
1. A computer-implemented system for receiving a
delivery estimated time of arrival (ET A) of an expected vehicle
at a customer location, the system comprising:
Appeal2014-004184
Application 12/138, 156
at least one customer system for receiving the ET A of the
expected vehicle at the customer location from at least one
tracking tool that is configured to receive historical vehicle
order average information which corresponds to known ET As
of one or more delivered vehicles over a predetermined time
frame and to generate at least one linear regression model for a
first milestone event which corresponds to a vehicle build
scheduling event of the expected vehicle in response to the
historical vehicle order average information to determine the
ETA of the expected vehicle at the customer location.
Appellants appeal the following rejections:
1. Claims 9, 11-19, 21 and 23 under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
2. Claims 1, 4, 6, 7, 9 and 13-16 under 35 U.S.C. § 103(a) as unpatentable
over Schweickart (US 2006/0085203 Al, pub. Apr. 20, 2006), Barts (US
2002/0082893 Al, pub. June 27, 2002), and Holliday (US
2008/0059274 Al, pub. Mar. 6, 2008).
3. Claims 2, 3, 8, 11, 12, 17-19 and 21-23 under 35 U.S.C. § 103(a) as
unpatentable over Schweickart, Barts, Holliday, and Ebert (US
2009/0008450 Al, pub. Jan. 8, 2009).
ISSUE
Did the Examiner err in rejecting the claims under 35 U.S.C. § 101
because the claims on appeal encompass more than software per se?
Did the Examiner err in rejecting the claims because the linear
regression modeling taught in Holliday does not relate to the delivery of
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Application 12/138, 156
vehicles as is the subject of Schweickart and Barts but rather the prediction
of how many people will be in a queue in a supermarket? 1
ANALYSIS
Non-statutory subject matter
The Examiner argues that claims 9, 11-19, 21 and 23 relate to
software per se. The Appellants argue that the tracking tool could be a
database that stores information and as such is not drawn to software alone.
(App. Brief 5). However, a database is just an array of data whose scope
encmnpasses software per se, especially in view of the Specification which
does not specify that the tracking tool is any physical structure. Neither the
claims nor Specification nanow the scope to a physical instantiation.
In vie\v of the foregoing, we \vill affirm this rejection of the
Examiner.
Obviousness
The Appellants argue that the regression modeling disclosed in
Holliday does not relate to the vehicle delivery as is the subject of the
Schweickart and Barts methods but rather to information pertaining to
checkout times in retail outlets. We agree.
1 The i\.ppellants also argue that the proposed amendrnent to the
Specification does not introduce new matter as was found by the Examiner.
However, the issue of whether the Specification contains new rnatter under
35 U.S.C. § 132 is petitionable, not appealable. See In re Rasmussen,
650 F.2d 1212, 1214-15 (CCPA 1981); MPEP § 706.03(0) and§ 1002.02(c);
see also MPEP § 1201.
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Application 12/138, 156
Holliday is concerned with optimizing queue management systems in
a retail outlet [ 1]. As part of this optimization, Holliday seeks to predict the
number of arrivals in a queue [71, 88]. This prediction takes the average
checkout time over the past few minutes to determine the average checkout
time over the next (m) minutes, and linear regression is used to calculate the
arrival time of people into the queue in the next (m) minutes [87-96]. This
linear regression does not relate to the delivery of items as found by the
Examiner but rather the prediction of how many people will arrive at a
queue to optimize staffing levels [ 100]. This prediction takes into
consideration the number of arrivals at the checkouts, the number of people
who enter the store and the number of people who leave the store. It is not
seen how this teaching applies to the delivery of vehicles which is the
subject of the methods of Schweickart and Barts. The Examiner explains
that the rationale for modifying the Schweickart/Barts tracking tool so as to
1 ... 1' ' 1• • 1 1 •• 1 • 1 1 ,., ,. oe conngurea w generace a nnear regress10n moae1 is 1ne s1mp1e suosu1uuon
of one element for another (Ans. 4). However, the Examiner does not
explain why a person of ordinary skill in the art would be led to make the
substitution of a linear regression model designed to predict the number of
people arriving at a queue for the mathematical analysis disclosed in Barts.
In fact, it is not clear from the Examiner's rationale what system would
result from such a substitution.
In view of the foregoing, we will not sustain the Examiner's rejection
of claims 1, 4, 6, 7, 9 and 13-16 under 35 U.S.C. § 103.
We will also not sustain the Examiner's rejection of claims 2, 3, 8, 11,
12, 17-19 and 21-23 because the rejection of these claims relies on the
rationale used in the above rejection to combine the teachings of
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Application 12/138, 156
Schweickart, Barts, and Holliday that we found flawed in our discussion of
the preceding rejection.
DECISION
We affirm the Examiner's § 101 rejection.
We reverse the Examiner's § 103 rejections.
AFFIRMED-IN-PART
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