Ex Parte Burnett et al

Patent Trial and Appeal Board

Mar 20, 2017

13310047 (P.T.A.B. Mar. 20, 2017)

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.
13/310,047 12/02/2011 Gabriel A. Burnett 11-0602-US-NP 6375
63759 7590 03/22/2017
DTTKFW YFF
EXAMINER
YEE & ASSOCIATES, P.C. KONERU, SUJAY
P.O. BOX 802333
DALLAS, TX 75380 ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
03/22/2017 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):
ptonotifs @yeeiplaw.com
mgamez @ yeeiplaw. com
patentadmin @ boeing. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GABRIEL A. BURNETT and YUANXIN CHARLES HU
Appeal 2014-001532
Application 13/310,0471
Technology Center 3600
Before, JOSEPH A. FISCHETTI, KENNETH G. SCHOPFER, and
MATTHEW S. MEYERS, Administrative Patent Judges.
FISCHETTI, 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 rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM IN PART and enter a new ground of rejection pursuant
to our authority under 37 C.F.R. § 41.50(b).
1 Appellants identify The Boeing Company as the real party in interest.
(Appeal Br. 2.)
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Application 13/310,047
THE INVENTION
Appellants claim a “system and method for project simulation and
analysis, and for generating a graphical representation of project simulation
results.” (Spec, para 1.)
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A method for generating a project plan, the method
comprising:
receiving, by a processor unit, project description
information for a project comprising a plurality of tasks, the
project description information comprising information
describing precedence relationships between tasks, information
indicating durations of the tasks, and information indicating
variability in the durations of the tasks;
generating, by the processor unit, a simulation model for
the project using the project description information;
running the simulation model for a plurality of runs to
identify a subset of tasks forming a critical path and to generate
simulation results data; and
generating a project network presentation from the
simulation results data, the project network presentation
including the identified subset of the tasks forming the critical
path.
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Corman US 2004/0267584 A1 Dec. 30,2004
Poulsen US 2006/0277487 A1 Dec. 7,2006
Newpol US 2011/0302090 A1 Dec. 8, 2011
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The following rejections are before us for review.
Claims 1—4, 6—13, and 15—20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Newpol and Poulsen.
Claims 5 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Newpol, Poulsen, and Corman.
FINDING OF FACT
1. Newpol discloses,
With Statistical Distributions for project tasks
available, any progress point in a project
(including the overall project completion) may be
examined to determine the end date, given an
assumed likelihood or confidence value, or
alternatively, the chance of completing the tasks by
a specific date can be easily obtained. This allows
rapid analysis of ‘what-if’ scenarios, such as the
effect of resource changes, overall impact of
specific task estimates or pre-requisites, and
various re-loading scenarios.
Para. 61.
ANALYSIS
35 U.S.C. § 103 REJECTION
Each of independent claims 1 and 10 require in one form or another,
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“generating, by the processor unit, a simulation model for the project
using the project description information;
running the simulation model for a plurality of runs to identify a
subset of tasks forming a critical path and to generate simulation results
data.”
Appellants argue,
Appellants] show[] that Newpol does not run a simulation
model for a plurality of runs to identify a subset of tasks
forming a critical path, as claimed. To understand why, first
one must identify what the Office Action asserts is the
simulation model in Newpol. The Office Action does not state
what feature in Newpol is the claimed simulation model, but
does cite paragraphs 51 and 61 of Newpol. However, in
paragraphs 50 and 51 Newpol refers to the “operation of the
invention,” and “in this approach a project is considered a set of
tasks to be completed...” The completion of a tasks [sic] is
modeled as a random event within a given set of probabilities.
Newpol, paragraph 51. In paragraph 61 Newpol refers to
“statistical distributions for project tasks available”. Thus,
again, Newpol is referring to his own technique of statistical
project management.
(Appeal Br. 8.)
The Examiner found that generating a simulation model is disclosed at
paragraphs 51 and 61 in Newpol. (Final Act. 6.) “Para [0061] of Newpol
shows ‘This allows rapid analysis of ‘what-if scenarios, such as the effect of
resource changes, overall impact of specific task estimates or pre-requisites,
and various re-loading scenarios.’” (Answer 4.)
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Application 13/310,047
We agree with Appellants. We find that while the “what if’ scenarios
correspond to at least one simulation model, the rapid analysis of these
“what if’ scenarios do not result in the claimed “running the simulation
model for a plurality of runs to identify a subset of tasks forming a critical
path and to generate simulation results data.” According to Newpol at
paragraph 51, modeling occurs for each task and a probability is assigned to
each task. Thus, it is clear the subset of tasks are already identified when the
“what if’ scenarios are run. The result is an evaluation of the already
prescribed tasks, “as the effect of resource changes, overall impact of
specific task estimates or pre-requisites, and various re-loading scenarios.
As tasks are completed or estimates updated, the changes in such values may
be tracked to give planners and managers an immediate evaluation of the
changing risk associated with the project.” (FF. 1).
Therefore we will not sustain the rejection of independent claims 1
and 10, nor claims 2—9 and 11—18 which depend therefrom.
Claim 19 differs in scope from that of claims 1 and 10 in that it does
not require, “running the simulation model for a plurality of runs to identify
a subset of tasks forming a critical path and to generate simulation results
data”, and thus the analysis above does not apply. Concerning independent
claim 19, we adopt as our own the Examiner’s finding for claims 19 and 20
as set forth on page 11-12 of the Final Action. Appellants do not advance
any argument in their Appeal Brief to claims 19 and 20. The Examiner’s
Answer does not raise any new issue concerning these claims except to point
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out that Appellants’ arguments do not cover the content of claims 19 and 20.
(Answer 3). Thus, we summarily affirm the rejection of claims 19 and 20.
Arguments which Appellants could have made, but chose not to make in
their Brief have not been considered and are deemed to be waived. See 37
C.F.R. §41.37(c)(l)(iv) (2012).
The following new ground of rejection is entered pursuant to
37 C.F.R. § 41.50(b). Claims 1-20 are rejected under 35 U.S.C.
§ 101 as directed to non-statutory subject matter.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[wjhat
else is there in the claims before us?” To answer that question,
consider the elements of each claim both individually and “as
an ordered combination” to determine whether the additional
elements “transform the nature of the claim” into a patent-
eligible application. [The Court] described step two of this
analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp., Pty. Ltd. v CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014)
(citations omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 132 S. Ct. 1289 (2012)).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept.
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We find that the claims themselves provide enough information to
inform one as to what they are directed to.
Claim 1, which is representative of claim 10 as well, recites, receiving
project description information for a project comprising a plurality of tasks,
the project description information comprising information describing
precedence relationships between tasks, information indicating durations of
the tasks, and information indicating variability in the durations of the tasks;
generating, a simulation model for the project using the project description
information; running the simulation model for a plurality of runs to identify
a subset of tasks forming a critical path and to generate simulation results
data; and generating a project network presentation from the simulation
results data, the project network presentation including the identified subset
of the tasks forming the critical path.
Each of these steps, including the information descriptions, all involve
mental steps and/or thought. Receiving project description information is
mentally manifested by reading or hearing information. What the
information indicates is also a matter of mental comprehension. Generating
a simulation model is again a matter of thought process whereby a person
thinks about scenarios based on the indicated information.
Likewise, concerning independent claim 19, the noting of nodes
corresponding to the tasks and edges connecting the nodes to indicate a
relationship between the nodes is a mere matter of mental organization and
noting by highlighting nodes is a matter of mentally marking to indicate
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likelihoods that corresponding tasks are on the critical path is again a mere
matter of mental thought.
It follows from prior Supreme Court cases, and Bilski in particular,
that the claims at issue here are directed to an abstract idea. Like the risk
hedging in Bilski, the concept of repeating scenarios of an event or project to
identify a subset of tasks forming a critical path is a fundamental practice
long prevalent in human endeavor to effect efficiency, and hence
profitability, of the enterprise. Bilski v. Kappos, 561 U.S. 593 (2010). Thus,
the concept of repeating scenarios of an event or project to identify a subset
of tasks forming a critical path, like hedging, is an “abstract idea” beyond
the scope of § 101. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2356.
As in Alice, we need not labor to delimit the precise contours of the
“abstract ideas” category in this case. It is enough to recognize that there is
no meaningful distinction in the level of abstraction between the concept of
risk hedging in Bilski and the concept of repeating scenarios of a project to
identify a subset of tasks forming a critical path. Both are squarely within
the realm of “abstract ideas” as the Court has used that term. See Alice
Corp. Pty. Ltd., 134 S. Ct. at 2357. We conclude that the claims at issue are
directed to a patent-ineligible concept.
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply if” is
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not enough for patent eligibility. Nor is limiting the use of an
abstract idea ‘“to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on ... a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
featur[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (alterations in original) (citations
omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea ... on a
generic computer.” Alice Corp. Pty. Ltd., 134 S. Ct. at 2359. We find that
they do not.
Taking the claim elements separately, where so recited, the function
performed by the computer at each step of the process is purely
conventional. Using a computer to receive, compile, compare, identify,
make a determination and compile a list of data amounts to electronic data
query and retrieval—one of the most basic functions of a computer. All of
these computer functions are well-understood, routine, conventional
activities previously known to the industry. In short, each step of the
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ordered combination does no more than require a generic computer to
perform generic computer functions.
“[Ajfter Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible. The bare fact that a computer exists in the physical rather than
purely conceptual realm is ‘beside the point.’” DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (citation omitted).
CONCLUSIONS OF LAW
We conclude the Examiner did err in rejecting claims 1—18 under 35
U.S.C. § 103.
We conclude the Examiner did not err in rejecting claims 19—20 under
35 U.S.C. § 103.
DECISION
The decision of the Examiner to reject claims 1—18 under 35 U.S.C.
§ 103 is reversed.
The decision of the Examiner to reject claims 19 and 20 under 35
U.S.C. § 103 is affirmed.
We enter a new ground of rejection for claims 1-20 under 35 U.S.C. §
101 pursuant to 37 C.F.R. § 41.50(b).
This Decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (effective September 13, 2004), 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. & Trademark Office 21 (September
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7, 2004)). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 CFR § 41.50(b) also provides that the appellants, 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-IN-PART; 37 C.F.R, $ 41.50(b)
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