Ex Parte Roebke et al

Patent Trial and Appeal Board

Jul 11, 2016

12169227 (P.T.A.B. Jul. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/169,227 07/08/2008
28395 7590 07113/2016
BROOKS KUSHMAN P,CJFG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Carl A. Roebke
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.
81174010 8897
EXAMINER
KONERU, SUJAY
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
07/13/2016 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 CARL A. ROEBKE, ANTHONY CERCONE, KEVIN BENNETT,
GORDON MACAULAY, and ADRIAN PRICE
Appeal2014-002764 1
Application 12/169,2272
Technology Center 3600
Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
BRADLEY B. BAY AT, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1---6 and 35--49. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("Br.," filed
September 24, 2013) and the Examiner's Answer ("Ans.," mailed
October 28, 2013) and Final Office Action ("Final Act.," mailed March 25,
2013).
2 Appellants identify Ford Motor Company as the real party in interest.
Br. 2.
Appeal2014-002764
Application 12/169,227
CLAIMED INVENTION
Appellants' claimed invention "relates to a productivity operating
system and method for improving manufacturing productivity" (Spec. 1,
11. 9-11).
Claim 1, reproduced below, is the sole independent claim and
representative of the subject matter on appeal:
1. A computer-implemented method for improving
manufacturing productivity of a business entity's operations, the
method comprising:
receiving at least two elements of a first array and at least
two elements of a second array, wherein the first and second
arrays are interrelated to produce a productivity matrix;
receiving a number of matrix events, wherein each matrix
event is interrelated to an element in the first array and an
element of the second array, and each matrix event includes at
least one input, at least one output, and at least one activity step
for obtaining the output from the input;
communicating with one or more operation lines;
receiving inputs from the one or more operation lines;
performing the at least one activity step, at a first
computer, on the input to obtain a measurement of overall
commodity level performance; and
outputting by the computer, the measurement of overall
commodity level performance.
REJECTIONS
Claims 1, 42--45, and 49 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mammoser (US 2004/0158338 Al, pub. Aug. 12, 2004),
Cocco (US 7,379,782 Bl, iss. May 27, 2008), and Thursfield
(US 2006/0036458 Al, pub. Feb. 16, 2006).
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Application 12/169,227
Claims 6, 35-38, 40, and 41 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mammoser, Cocco, Thursfield, and Goulimis
(US 2008/0172280 Al, pub. July 17, 2008).
Claims 2-5 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Mammoser, Cocco, Thursfield, Goulimis, and Meade
(US 2007/0255605 Al, pub. Nov. 1, 2007).
Claims 46-48 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Mammoser, Cocco, Thursfield, and Official Notice.
Claim 39 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Mammoser, Cocco, Thursfield, Goulimis, and Official Notice.
ANALYSIS
Independent claim 1 and dependent claims 42-45 and 49
Appellants argue that the Examiner erred in rejecting independent
claim 1 under 35 U.S.C. § 103(a) because none of the cited references
discloses or suggests "receiving at least two elements of a first array and at
least two elements of a second array, wherein the first and second arrays are
interrelated to produce a productivity matrix," as recited in claim 1 (Br. 5-
6). The Examiner maintains that the rejection is proper, and cites
paragraph 10 of Mammoser as disclosing the argued limitation (Final
Act. 3--4).
Mammoser is directed to a computer-implemented system for
improving manufacturing productivity, and discloses in paragraph 10, cited
by the Examiner, that the system includes at least one computer configured
to receive a plurality of productivity data elements regarding a
manufacturing process, a plurality of six sigma elements, and a plurality of
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Application 12/169,227
lean manufacturing elements. Mammoser further discloses, in paragraph 10,
that the computer is configured to aid in determining at least one
productivity improvement to the manufacturing process using the plurality
of six sigma elements (which the Examiner equates to the claimed first
array) and the plurality of lean manufacturing elements (which the Examiner
equates to the claimed second array) based on the plurality of productivity
data elements (Final Act. 4).
Appellants acknowledge that six sigma elements and lean
manufacturing elements, as disclosed in Mammoser, may be used to aid in
determining a productivity improvement (Br. 5). But Appellants argue that
Mammoser does not disclose or suggest that these elements are interrelated
to produce a productivity matrix, which Appellants assert is not merely
"something related to productivity" (id. at 5---6).
Responding to Appellants' argument in the Response to Argument
section of the Answer, the Examiner asserts that a person of ordinary skill in
the art would reasonably interpret a plurality of data elements as equivalent
to an array of elements inasmuch as an array is an old and well-known data
structure for storing multiple elements (Ans. 4). And the Examiner
maintains that because Mammoser discloses that the array of six sigma
elements and the array of lean manufacturing are both used to aid in
determining at least one productivity improvement, Mammoser shows that
the arrays are interrelated (id.). The Examiner acknowledges that
Mammoser does not explicitly use the term "matrix" (id.). But the Examiner
finds that "when multiple results can be produced based on interrelated
arrays, one of reasonable skill in the art would consider such a utilization to
be equivalent to a matrix, which is also just an old and well known data
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Application 12/169,227
structure for displaying information" (id.). The Examiner also observes that
"there are no features in the claims that have any specific function of a
matrix where any special features of a matrix versus any other type of data
structure would make a difference" (id.).
Appellants do not present arguments responsive to the Examiner's
findings in their Appeal Brief. And Appellants did not file a Reply Brief.
In the absence of further explanation, we are not persuaded that the
Examiner erred in rejecting claim 1under35 U.S.C. § 103(a). Therefore,
we sustain the Examiner's rejection under §103(a) of independent claim 1,
and claims 42--45 and 49, which depend therefrom and are not argued
separately.
Dependent claims 2-6, 35-38, 39, 40, and 41
Appellants do not present any arguments in support of the
patentability of any of dependent claims 2---6, 35-38, 39, 40, and 41 except
to assert (with respect to claims 2---6, 35-38, 40, and 41) that the claims are
allowable based on their dependence from claim 1 (Br. 6-7). We are not
persuaded for the reasons set forth above that the Examiner erred in rejecting
claim 1 under 35 U.S.C. § 103(a). Therefore, we sustain the Examiner's
rejections under 35 U.S.C. § 103(a) of claims 2---6, 35-38, 40, and 41. For
much the same reasons, we also sustain the Examiner's rejection of claim 39
under§ 103(a).
Dependent claims 46--48
By way of background, claim 42 depends from claim 1, and recites
that the claimed inputs include, inter alia, "a plurality of elements of a
constraint activity board" and "operational equipment effectiveness."
Claim 43 depends directly from claim 42, and recites that "the plurality of
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Application 12/169,227
elements of a constraint activity board include hour by hour productivity
status."
Each of claims 46 and 47 depends from claim 43. Claim 46 recites
that the "hour by hour productivity status including a before and after hourly
count of inventory," and claim 47 recites that the "hour by hour productivity
status includes a constraint cycle time."
Claim 48 depends from claim 42, and recites that the operational
equipment effectiveness includes "a measure of the ability of a piece of
equipment or process to consistently produce quality products at a designed
cycle rate by measuring the availability, performance efficiency, and quality
rate of a machine."
In rejecting claims 46-48 under 35 U.S.C. § 103(a), the Examiner
takes Official Notice that "various manufacturing metrics are old and well
known" (Final Act. 15). And the Examiner asserts that "[ u] sing various
manufacturing metrics would enable different types of analysis of data to
make business decisions" (id.).
Appellants argue that claims 46-48 are separately patentable because
the metrics recited in claims 46-48 "are not randomly selected from a pool"
of "various manufacturing metrics" but rather "selected with specific
purpose for the results produced from their selection" (Br. 8). Appellants
thus maintain that "[ s ]imply knowing about manufacturing metrics, and even
knowing about these [claimed] metrics, does not automatically mean that
one of ordinary skill would apply these metrics to the prior art of record"
(id.).
The difficulty with Appellants' argument, as the Examiner correctly
observes, is that the subject matter recited in claims 46-48 that Appellants
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argue is not disclosed in the cited references, i.e., the informational content
of the inputs, recited in claim 1, constitutes non-functional descriptive
material that may not be relied on to distinguish over the prior art for
purposes of patentability (Ans. 4--5).
The Federal Circuit has long held that where a limitation claims
printed matter, i.e., informational content, that is not functionally or
structurally related to its physical substrate, the printed matter may not be
relied on to distinguish over the prior art for purposes of patentability. In re
Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (when descriptive material is
not functionally related to the substrate, the descriptive material will not
distinguish the invention from the prior art in terms of patentability). More
recently, the rationale underlying the "printed matter" cases has been
extended to the analysis of the patentability of method claims. King
Pharms. Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1278-79 (Fed. Cir. 2010)
(applying the "printed matter" reasoning to method claims containing an
"informing" step that could be either printed or verbal instructions).
In this case, each of claims 46-48 claims the informational content of
the inputs received from the one or more operation lines recited in claim 1,
e.g., that the inputs include "hour by hour productivity status including a
before and after hourly count of inventory," as recited in claim 46.
Therefore, the relevant question is whether the recitation that the inputs
include the specific data recited in claims 46-48, i.e., the claimed
informational content, has a "new and unobvious functional relationship"
with the method. Id. at 1279. See also In re Distefano, 808 F.3d 845 (Fed.
Cir. 2015).
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Here, we agree with the Examiner that regardless of the particular data
used as inputs, the underlying method, including the steps of "receiving
inputs from the one or more operation lines" and "performing the at least
one activity step ... on the input to obtain a measurement of overall
commodity level performance," is the same. The nature of the data used as
inputs does not depend on the method, and the method does not depend on
the nature of the input data. As such, it constitutes non-functional
descriptive material that may not be relied on for patentability. See In re
Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); cf In re Gulack, 703 F.2d 1381,
1385 (Fed. Cir. 1983) (when descriptive material is not functionally related
to the substrate, the descriptive material will not distinguish the invention
from the prior art in terms of patentability).
In view of the foregoing, we sustain the Examiner's rejection of
claims 46-48 under 35 U.S.C. § 103(a).
DECISION
The Examiner's rejections of claims 1---6 and 35--49 under 35 U.S.C.
§ 103(a) are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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