Ex Parte Angell et al

Patent Trial and Appeal Board

Dec 8, 2016

11853491 (P.T.A.B. Dec. 8, 2016)

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.
11/853,491 09/11/2007 Robert Lee Angell END920070294US1 3128
37945 7590 12/12/2016
DTTKFW YFF
EXAMINER
YEE AND ASSOCIATES, P.C. NGUYEN, THUY-VI THI
P.O. BOX 802333
DALLAS, TX 75380 ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
12/12/2016 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):
ptonotifs @yeeiplaw.com
mgamez @ yeeiplaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT LEE ANGELL and
JAMES R. KRAEMER
Appeal 2014-0011881
Application 11/853,4912
Technology Center 3600
Before NINA L. MEDLOCK, CYNTHIA L. MURPHY, and
MATTHEW S. MEYERS, Administrative Patent Judges.
MEYERS, 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—20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants’ Appeal Brief (“Appeal Br.,” filed
May 23, 2013), Reply Brief (“Reply Br.,” filed October 15, 2013), the
Examiner’s Answer (“Ans.,” mailed September 3, 2013), and Final Office
Action (“Final Act.,” mailed January 2, 2013).
2 Appellants identify International Business Machines Corporation as the
real party in interest (Appeal Br. 2).
Appeal 2014-001188
Application 11/853,491
CLAIMED INVENTION
Appellants’ claimed invention relates generally to a system that
“utilize[es] digital video modeling to generate labor standards from video
data” (Spec. 12).
Claims 1, 10, and 19 are the independent claims on appeal. Claim 1,
reproduced below with added bracketed notations, is illustrative of the
subject matter on appeal:
1. A computer implemented method for managing a
task, the computer implemented method comprising:
[a] automatically detecting event data derived by a
computer from a continuous video stream, wherein the event data
comprises metadata describing a sequence of motions for
performing the task;
[b] parsing the event data to identify appropriate event data
describing a discrete set of motions from the sequence of
motions;
[c] analyzing, using an analysis server, the discrete set of
motions to form a labor standard, wherein the labor standard
specifies an optimal manner of performing the discrete set of
motions for each of a plurality of persons according to one or
more of each person’s height, weight, age, physical limitations,
and experience; and
[d] generating a set of recommendations for performing
the task efficiently according to the labor standard.
REJECTIONS
Claims 1—20 are rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement.
Claims 2, 3, 11, and 12 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.
2
Appeal 2014-001188
Application 11/853,491
Claims 1—20 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Shibuya (US 2007/0282479 Al, pub. Dec. 6, 2007) and McNitt (US
2002/0114493 Al, pub. Aug. 22, 2002).
ANALYSIS
Written Description
Independent claims 1, 10, and 19, and dependent claims 2—9, 11—18, and 20
In rejecting claims 1—20 under 35 U.S.C. § 112, first paragraph, the
Examiner finds that there is no written description support in the
Specification for limitation [c] of independent claim 1 which recites:
analyzing, using an analysis server, the discrete set of motions to
form a labor standard, wherein the labor standard specifies an
optimal manner of performing the discrete set of motions for
each of a plurality of persons according to one or more of each
person’s height, weight, age, physical limitations, and
experience.
(See Final Act. 2; see also Ans. 16—22). Independent claims 10 and 19
include a substantially similar limitation. The Examiner acknowledges that
paragraph 96 of Appellants’ Specification “shows the profile data of the
person such as height, weight, age, physical limitation, and experience are
used for customizing the labor standard” (Ans. 18), but understands
paragraph 96 to mean “the labor standard has been formed and can be
customized for each individual worker based on their profile (e.g. height,
weight, age)” (id.), and as such,
the height, weight, age, physical limitation and experience data
are not used to establish or create the labor standard, they are
used to customize the labor standard). Therefore, par [a]. 0096
does not support the claimed feature “the labor standard specifies
an optimal manner of performing the discrete set of motions for
each of a plurality of persons according to one or more of each
3
Appeal 2014-001188
Application 11/853,491
person’s height, weight, age, physical limitations, and
experience.”
(Id.).
Appellants maintain that the rejection is improper and that support for
the identified claim limitation is found in the Specification at paragraphs 96,
98, and 99, as well as Figure 5 (see Appeal Br. 6—12; see also Reply Br. 2—
9).
Whether a specification complies with the written description
requirement of 35 U.S.C. § 112, first paragraph, is a question of fact and is
assessed on a case-by-case basis. See, e.g., Purdue Pharma L.P. v.
Faulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000) (citing Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1561 (Fed. Cir. 1991)). The disclosure, as
originally filed, need not literally describe the claimed subject matter (i.e.,
using the same terms or in haec verba) in order to satisfy the written
description requirement. But the Specification must convey with reasonable
clarity to those skilled in the art that, as of the filing date, Appellant was in
possession of the claimed invention. See id.
Here, as Appellants point out, the Specification discloses
that profile data 512 is data relating to one or more workers of a
facility. This portion of the Specification also discloses that
profile data 512 relates to a worker’s physical characteristics,
such as height, weight, age, and other attributes, such as work
schedule, known physical limitations that may prevent the
performance of certain tasks, lists of certifications obtained, and
previous job descriptions.
(Reply Br. 5—6 (citing Spec. 196)). Appellants also identify that the
Specification discloses ‘“[pjrofile data 512 may also include a customized
labor standard associated with individual workers that accounts for the
4
Appeal 2014-001188
Application 11/853,491
strengths and weaknesses of each worker”'’ (Reply Br. 7 (citing Spec. | 96)),
processing event data 510 by parsing event data 510 for appropriate data
elements and by combining event data 510 with profde data 512’” (Reply
Br. 7 (citing Spec. 198)), and “analysis server 502 performs the analysis of
event data 510 relating to the performance of a task by a single worker for
generating a labor standard specific as to that particular worker’'’ (Reply
Br. 8 (citing Spec. 196)). Thus, we agree with Appellants that a person of
ordinary skill in the art would reasonably understand from the Specification
(including the drawings), as originally filed, that Appellants were in
possession of the claimed invention, including “analyzing ... the discrete set
of motions to form a labor standard, wherein the labor standard specifies an
optimal manner of performing the discrete set of motions for each of a
plurality of persons according to one or more of each person’s height,
weight, age, physical limitations, and experience,” as recited in independent
claim 1, and similarly recited in independent claims 10 and 19, at the time
the application was filed.
Therefore, we do not sustain the Examiner’s rejection of claims 1—20,
under 35U.S.C. § 112, first paragraph.
Dependent claims 3 and 12
In rejecting claims 3 and 12 under 35 U.S.C. § 112, first paragraph,
the Examiner finds that there is no written description support in the
Specification for “wherein the set of recommendations identifies a person
for performing the discrete set of motions and further comprising:
customizing the labor standard for the person according to the person’s
height, weight, age, physical limitations, and experience,” as recited by
dependent claims 3, and similarly recited by dependent claim 12 (see Final
5
Appeal 2014-001188
Application 11/853,491
Act. 5—6). The Examiner acknowledges that paragraph 96 of Appellants’
Specification “shows the profile data 512 relates to worker’s physical
characteristics, such as height, weight, age, and other attributes, such as
work schedule, known physical limitations, lists of certifications obtained,
and previous job description” (Ans. 23), but finds that paragraph 96
does not seem to disclose the customizing the labor standard for
the person according to all of the attributes of the person’s height,
weight, age, physical limitation and experience. In the [sic] other
words, the [Specification is silent about using all of these
attributes to customize the labor standard for a person or a worker
as claimed.
(Id.).
Appellants maintain that the rejection is improper and that support for
the identified claim limitation is found in the Specification at paragraphs 96,
98, and 99, as well as Figure 5 (see Appeal Br. 12—15; see also Reply Br. 9—
13). More particularly, Appellants argue
paragraph [0096] recites that “[p]rofile data 512 may also include
a customized labor standard associated with individual workers
that accounts for the strengths and weaknesses of each worker.'1'’
(Emphasis [original]) Additionally, paragraph [0096] also
describes the attributes of the workers. For example,
paragraph [0096] teaches above that the attributes of the workers
include height, weight, age, work schedule, known physical
limitations that may prevent the performance of certain tasks,
lists of certifications obtained, previous job descriptions, and any
data that could be taken into consideration in identifying workers
for performing certain tasks. One of ordinary skill in the art at
the time of the invention would understand that the strengths and
weaknesses of the workers disclosed in paragraph [0096] are the
attributes of the workers disclosed in paragraph [0096].
(Reply Br. 11).
6
Appeal 2014-001188
Application 11/853,491
We agree with Appellants that the Specification, specifically
paragraphs 96, 98, and 99, as well as Figure 5, conveys with reasonable
clarity to those skilled in the art that, as of the filing date sought, Appellants
were in possession of the invention as now claimed, including “customizing
the labor standard for the person according to the person’s height, weight,
age, physical limitations, and experience,” as recited by dependent claims 3,
and similarly recited by dependent claim 12.
Therefore, we do not sustain the Examiner’s rejection of dependent
claims 3 and 12 under 35 U.S.C. § 112, first paragraph.
Indefiniteness
Dependent claims 2, 3, 11, and 12
In rejecting claims 2 and 11 under 35 U.S.C. § 112, second paragraph,
the Examiner finds dependent
claims 2 and 11, recite [ ] “monitoring to determine when a person
is not in compliance with the labor standard for performing the
discrete set of motions”, it is not clear whether “a person” as
recited in claim 2 is referred to the person from a plurality of
persons as recited in previous claims (claims 1 and 10) or it is
introduced a new person [sic].
(Final Act. 6). Claims 3 and 12 also refer to “a person” in a manner similar
to claims 2 and 11.
However, as Appellants point out, “the person may be employed or
located at facility 200” (Reply Br. 15 (citing Spec. 140)) and “the language
in claims 2 and 3 do not suggest ‘a person,’ as recited in claims 2 and 3, is
referring only to one of the plurality of persons recited in claim 1 or only to
a new person” (id.). Thus, we agree with Appellants that [o]ne of ordinary
7
Appeal 2014-001188
Application 11/853,491
skill in the art would understand that the term ‘a person,’ when not qualified
by some limitation, broadly means any person” (id.).
Accordingly, we do not sustain the Examiner’s rejection of claims 2,
3, 11, and 12 under 35 U.S.C. § 112, second paragraph. See, e.g.,
Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed.
Cir. 1986) (The test for definiteness under 35 U.S.C. § 112, second
paragraph, is whether those skilled in the art would understand what is
claimed when the claim is read in light of the specification).
Obviousness
Independent claims 1, 10, and 19, and dependent claims 2, 4—9, 11, 13—18,
and 20.
We are not persuaded by Appellants’ argument that the Examiner
erred in rejecting independent claim 1 under 35 U.S.C. § 103(a) because the
combination of Shibuya and McNitt fails to disclose or suggest limitation [c]
of independent claim 1 which recites:
analyzing, using an analysis server, the discrete set of motions to
form a labor standard, wherein the labor standard specifies an
optimal manner of performing the discrete set of motions for
each of a plurality of persons according to one or more of each
person’s height, weight, age, physical limitations, and
experience.
(See Appeal Br. 17—25; see also Reply Br. 16—24). Independent claims 10
and 19 recite a substantially similar limitation. Instead, we agree with the
Examiner that the combination of Shibuya and McNitt renders obvious the
argued limitation of independent claim 1, which is similarly recited by
independent claims 10 and 19 (see Final Act. 7—9 (citing Shibuya ]Hf 121—
123, Figs. 11, 12; McNitt 159, Figs. 7—8); see also Ans. 27—29).
8
Appeal 2014-001188
Application 11/853,491
Shibuya is directed to “a work movement analysis method . . . that can
efficiently analyze moving picture information of a work movement in [the]
case of [one] worker repeating a same movement many times” (Shibuya
111; see also id. 137). Shibuya identifies that it is known in the prior art
[a]t a job site where one or more workers perform a work such
as a supply, process, assembly, and packaging of a part by
manpower, it is necessary to optimize a work procedure, estimate
a standard work time, and converge the work to the standard
work time from a viewpoint of production control.
{Id. 14). Shibuya further identifies that it is known in the prior art to
estimate the time required for a work procedure
using a rating coefficient as a rating of a work speed and
converting it to a normal speed. A worker is different in work
speed depending on such a skill level, age, and gender thereof.
For example, in the method, with respect to a worker inferior in
skill and slow in work speed, a standard work time is obtained
by multiplying an actual work time by a rating coefficient.
{Id.).
In this regard, Shibuya describes that “a work movement means a
worker’s movement of a series of processes performed through manpower
by any of individual workers and a group of workers” {id. 113). Shibuya
discloses that its system “divide[s] a worker’s work movement acquired as a
moving picture into a plurality of movement sections,” “identifies] a
plurality of kinds of movement sections,” and then creates “identification
information defined by [the] specific movement section” (id. 112; see also
id. 38-44). Based on these data, Shibuya generates
a record of work movement division information comprising] a
cycle sequence number, a movement group number, a movement
group name, a movement element sequence number, a movement
element name, a movement section identification (movement
section name), a movement start time position, a movement end
9
Appeal 2014-001188
Application 11/853,491
time position, a reproduction speed, reproduction skip
information, and rating information.
{Id. 1 53; see also id. at Fig. 4). Shibuya discloses an “in-process
comparison work movement processing unit 13”
calculates statistical information of analysis information related
to a movement section with respect to respective work movement
elements included in a work movement of a same process and
compares and displays the statistical information of the analysis
information related to the calculated movement section, based on
work movement division information generated by a work
movement moving picture at a time when a worker repeats the
work movement of the process.
{Id. 1108). Shibuya further discloses that its system displays “an average
value, maximum value, and minimum value of a work movement time of
each movement section” for “each work movement configuring a same work
movement when a worker repeats the same work movement” {id. 1112).
Shibuya discloses that its “in-process comparison work movement
processing unit 13” provides “variation information for every work
movement element of a worker’s work movement” which allows
a worker [to] objectively know an unstable work movement
element of own work and soon check the work movement by the
moving picture; therefore, she/he can enhance a work skill in a
shorter time. Furthermore, this enables any of an analysis
operator and a process supervisor to easily find and analyze a
problem and to take countermeasures thereof.
{Id. 1118).
Shibuya also discloses a “between-process comparison work
movement processing unit 14” {id. 1121) processes “the average times of
work movement times of each process and each work movement element”
and displays the worker’s average time per movement using stacked bar
graphs which are then compared against “standard times that are work
10
Appeal 2014-001188
Application 11/853,491
requirement times of a standard worker” (id. 1122; see also id. at Figs. 11,
12). Shibuya discloses that these data enable a supervisor “to easily find and
analyze a problem and to take countermeasures,” “perform a simulation for
reconstructing a process in a level of a work movement, and also reconstruct
the process, considering anyone [sic] of an increase and decrease of work
manpower” (id. 1130).
McNitt is directed to “an analysis tool that synchronizes at least two
signals carrying sensed information associated with physical motion”
(McNitt 17). More particularly, McNitt discloses
the signals relate to video frame data signal carrying video
information of a golf swing and a positional data signal carrying
positional motion information associated with positional
measurements of elements of the golf swing. The video frame
data signal and the positional data signal are synchronized by the
analysis tool to provide golf swing analysis.
(Id. 18). In this regard, McNitt discloses that its “analysis tool might be
used for educational analysis of any element of an athletic motion where the
element is used as a measure through which a sport is conducted” (id.).
Appellants argue that Shibuya fails to disclose or suggest “forming a
labor standard specifying an optimal manner of performing discrete motions
for each of a plurality ofpersons according to each person’s height, weight,
age, physical limitations, and experience'1'’ (Appeal Br. 18—22; see also
Reply Br. 18—22). However, Appellants’ argument is not persuasive at least
because independent claim 1 is rejected as unpatentable over the
combination of Shibuya and McNitt, and not over Shibuya alone. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness
cannot be established by attacking the references individually where the
rejection is based upon the teachings of a combination of references.”)
11
Appeal 2014-001188
Application 11/853,491
(citation omitted). Here, the Examiner does not rely on Shibuya to address
“forming a labor standard,” i.e., “analyzing, using an analysis server, the
discrete set of motions to form a labor standard,” as recited by limitation [c]
of independent claim 1; but rather, relies on the combined teachings of
Shibuya and McNitt (see Final Act. 7—9; see also Ans. 27—29).
Appellants contend that paragraph 4 “of Shibuya discloses that ‘work
speed’ of workers is dependent on ‘skill level, age, and gender’” and “us[es]
‘a rating coefficient’ for a worker as a means to compare the workers ‘actual
work time’ to ‘a standard work time,”’ but argue that “[tjhese portions of
Shibuya do not teach or suggest forming a labor standard specifying an
optimal manner of performing discrete motions for each of a plurality of
persons according to each person’s height, weight, age, physical limitations,
and experience, in the manner recited in claim 1 ” (Appeal Br. 20—21; see
also Reply Br. 19-20). Appellants also argue that “calculating and
displaying average work times, in the manner disclosed in Shibuya, is not
the same as forming a labor standard specifying an optimal manner of
performing discrete motions for each of a plurality of persons according to
each person’s height, weight, age, physical limitations, and experience”
(Appeal Br. 21— 22; see also Reply Br. 20-22). We are not persuaded by
Appellants’ arguments.
At the outset, we note that independent claim 1 does not recite
“forming a labor standard specifying an optimal manner of performing
discrete motions for each of a plurality of persons according to each person’s
height, weight, age, physical limitations, and experience”; but rather,
exemplary independent claim 1 recites “form[ing] a labor standard, wherein
the labor standard specifies an optimal manner of performing the discrete set
12
Appeal 2014-001188
Application 11/853,491
of motions for each of a plurality of persons according to one or more of
each person’s height, weight, age, physical limitations, and experience.” See
CollegeNet, Inc. v. ApplyYourself Inc., 418 F.3d 1225, 1231 (Fed. Cir.
2005) (although the specification can be examined for proper context of a
claim term, limitations from the specification will not be imported into the
claims). And, as the Examiner points out (see Ans. 28—29), the Examiner
does not rely solely on Shibuya, at paragraph 4, to address the argued
limitation, but also relies on paragraphs 121—123, as well as Figures 11 and
12 of Shibuya, in combination with McNitt (see Final Act. 7—9; Ans. 27—
29).
In this regard, Shibuya discloses that its “between-process comparison
work movement processing unit 14” compares a worker’s “average times of
work movement times of each process” against “standard times that are
work requirement times of a standard worker.” Thus, we find Shibuya
discloses a “labor standard specifying] an optimal manner of performing the
discrete set of motions for each of a plurality of persons (see Shibuya
111 19—123; see also Ans. 7—8, 28). We also agree with the Examiner that
Shibuya’s disclosure regarding “a rating coefficient as a rating of a work
speed” which factors in a particular worker’s “skill level, age, and gender”
and is used to “convert[] it to a normal speed” (see Shibuya 14) together
with Shibuya’s “work requirement times of a standard worker” discloses
“wherein the labor standard specifies an optimal manner of performing the
discrete set of motions for each of a plurality of persons according to one or
more of each person’s height, weight, age, physical limitations, and
experience,” as required by limitation [c] of independent claim 1. We note
this interpretation is commensurate with Appellants’ Specification which
13
Appeal 2014-001188
Application 11/853,491
discloses generally that “[ljabor standards are guidelines implemented by
organizations to standardize and streamline the performance of repetitive
tasks” ((Spec. 13) and further “[t]he labor standard may specify an amount
of time to complete one or more discrete sets of motions that form the
sequence of motions” {id. 1 54; cf. Shibuya 1107, Figs. 9—12).
Appellants further argue that McNitt fails to disclose or suggest
“forming a labor standard specifying an optimal manner of performing
discrete motions for each of a plurality of persons according to each person’s
height, weight, age, physical limitations, and experience, in the manner
recited in claim 1” (Appeal Br. 23—25; see Reply Br. 22—24). However, once
again, Appellants’ argument is not persuasive at least because independent
claim 1 is rejected as unpatentable over the combination of Shibuya and
McNitt, and not over Shibuya alone. See Merck, 800 F.2d at 1097.
Here, the Examiner does not rely on either Shibuya or McNitt to
address the argued limitation; but rather relies on the combined teachings of
Shibuya and McNitt (see Final Act. 7—9; see also Ans. 27—29). The
Examiner relies on McNitt to address “analyzing, using an analysis server,
the discrete set of motions to form a labor standard” {see Final Act. 9). In
this regard, McNitt discloses an analysis tool that senses information
associated with physical motion in video data (McNitt 17). McNitt further
discloses the video frame data includes “information of a golf swing and a
positional data signal carrying positional motion information associated with
positional measurements of elements of the golf swing” {id. 1 8).
In view of the foregoing, we sustain the Examiner’s rejection of
independent claims 1, 10, and 19 under 35 U.S.C. § 103(a). For the same
14
Appeal 2014-001188
Application 11/853,491
reasons, we also sustain the Examiner’s rejection of claims 2, 4—9, 11, 13—
18, and 20, which were not separately argued.
Dependent claims 3 and 12
Dependent claim 3 recites “wherein the set of recommendations
identifies a person for performing the discrete set of motions and further
comprising: customizing the labor standard for the person according to the
person’s height, weight, age, physical limitations, and experience.”
Dependent claim 12 recites a similar limitation.
We are not persuaded by Appellants’ argument that paragraph 4 of
“Shibuya do[es] not teach or suggest customizing a labor standard for a
particular person according to the particular person’s height, weight, age,
physical limitations, and experience,” as recited by claim 3, because “[ujsing
a rating coefficient to compare actual work time to standard work time, in
the manner disclosed in Shibuya, is not the same as customizing a labor
standard for a particular person according to the particular person’s height,
weight, age, physical limitations, and experience” (Appeal Br. 26—27; see
also Reply Br. 25—26).
As discussed above with respect to limitation [c] of independent
claim 1, we agree with the Examiner that Shibuya discloses a “labor
standard specifying] an optimal manner of performing the discrete set of
motions for each of a plurality of persons (see Shibuya Tflf 119-123; see also
Ans. 7—8, 28) and combing Shibuya’s disclosure regarding “a rating
coefficient as a rating of a work speed” which factors in a particular
worker’s “skill level, age, and gender” (see Final Act. 10) to “convert[] it to
a normal speed” (see Shibuya 14) together with Shibuya’s “work
15
Appeal 2014-001188
Application 11/853,491
requirement times of a standard worker” discloses “wherein the labor
standard specifies an optimal manner of performing the discrete set of
motions for each of a plurality of persons according to one or more of each
person’s height, weight, age, physical limitations, and experience,” as
required by limitation [c] of independent claim 1.
Here, in rejecting dependent claims 3 and 12, the Examiner finds
Shibuya “discloses the customizing labor standard for the person according
to the person’s skill level, age, gender thereof’ (Final Act. 10 (citing
Shibuya 14)), but acknowledges that neither Shibuya nor McNitt explicitly
discloses “customizing labor standard for the person according the person’s
height and weight” (Final Act. 10). To address this deficiency, the Examiner
concludes
it would have been obvious to one of ordinary skill in the art to
customize the labor standard for the person depending on the
person’s skill level, age, gender of SHIBUYA to also include the
person’s height, weight and physical limitation because in order
to optimize the work efficiency as well as minimize the risk of
the worker in the work environment, it is a common sense that
the labor standard is necessary to be adjusted or customized
based on each individual profile, for example the labor standard
of performing a task (e.g. lifting an object) at the work
environment for female or a person with 5 feet tall would be
different than a male or a person with 6 feet tall, or for a person
with previous history of injury should has the light duty work
instead of following the labor standard.
(Id 10-11).
Appellants do not present any persuasive argument or technical
reasoning to explain why the Examiner’s finding is unreasonable or
unsupported. And, in the absence of any persuasive argument to the
16
Appeal 2014-001188
Application 11/853,491
contrary, we agree with the Examiner that the combination of Shibuya and
McNitt renders obvious the subject matter of dependent claims 3 and 12.
In view of the foregoing, we sustain the Examiner’s rejection of
dependent claims 3 and 12 under 35 U.S.C. § 103(a).
DECISION
The Examiner’s rejections of claims 1—20 under 35 U.S.C. § 112, first
paragraph, are reversed.
The Examiner’s rejections of claims 2, 3, 11, and 12 under 35 U.S.C.
§112, second paragraph, are reversed.
The Examiner’s rejection of claims 1—20 under 35 U.S.C. § 103(a) is
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
17