Ex Parte Bui et al

Patent Trial and Appeal Board

May 31, 2016

12817553 (P.T.A.B. May. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/817,553 06/17/2010 Hung Dao Bui
46296 7590 06/02/2016
MARTIN & ASSOCIATES, LLC
P.O. BOX548
CARTHAGE, MO 64836-0548
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.
ROC920090014US2 5797
EXAMINER
TRUV AN, LEYNNA THANH
ART UNIT PAPER NUMBER
2435
NOTIFICATION DATE DELIVERY MODE
06/02/2016 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):
derekm@ideaprotect.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HUNG DAO BUI,
IVORY WELLMAN KNIPPER,
ENG HIN KOH, SER HUA Y TAN, and
MATTHEW H. ZEMKE
Appeal2014-006411
Application 12/817,553
Technology Center 2400
Before DEBRA K. STEPHENS, SHARON PENICK, and
JOHN R. KENNY, Administrative Patent Judges.
KE1\J1...JY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1---6 and 15-20, which constitute all claims pending in the
application. (Final Act. 1-2; App. Br. 2.) We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
Appeal2014-006411
Application 12/817,553
INVENTION
Appellant's disclosed invention relates to the authorization of workers
to perform operations in manufacturing systems. (Spec. i-f 3.) Claim 1,
which is exemplary, reads:
1. An apparatus comprising:
at least one processor;
a memory coupled to the at least one processor;
an autonomic operator authorization adjustment mechanism
residing in the memory and executed by the at least one processor, the
autonomic operator authorization adjustment mechanism determining
work history for a selected operator in performing a selected operation
in a manufacturing environment, wherein the work history for the
selected operator spans multiple time periods with at least one period
of inactivity between the multiple time periods, where each time
period and each period of inactivity specifies a range of dates, the
autonomic operator authorization adjustment mechanism determining
at least one portion of the work history that is applicable to the
selected operator according to at least one time threshold, and
autonomically adjusting an authorization for the selected operator to
perform the selected operation based on the work history of the
selected operator that satisfies the at least one time threshold.
REFERENCES
The Examiner relies on the following prior art references in rejecting
the claims on appeal:
Sachedina US 2009/0150223 Al June 11, 2009
Strelling et al. US 2010/0235202 Al Sept. 16, 2010
2
Appeal2014-006411
Application 12/817,553
REJECTIONS
Claims 1---6 and 15-20 stand provisionally rejected on the ground of
obviousness double patenting over claims 1---6 of Application Serial No.
13/7 54,886 ("' 886 application"). (Final Act. 3.)
Claims 1---6 and 15-20 also stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Strelling and Sachedina. (Final
Act. 7.)
ANALYSIS
Provisional Obviousness-Type Double Patenting
Appellants argue the Examiner erred in provisionally rejecting the
pending claims for obviousness-type double patenting over the claims of the
'886 application because the present application was filed before the '886
application. (App. Br. 5; Reply Br. 1-2.) Appellants contend that MPEP
§ 804(I)(B)(l) requires the Examiner to allow the earlier-filed application to
issue and to maintain the provisional rejection for only the later-filed
application. (App. Br. 5; Reply Br. 1-2.) The cited provision of the MPEP,
however, addresses the case where "provisional ODP [obvious-type double
patenting] rejections in two applications are the only rejections remaining in
those applications." MPEP § 804(I)(B)(l). That is not the case here, where
the Examiner also rejected the pending claims under 35 U.S.C. § 103. 1
(Final Act. 9.) Therefore, MPEP § 804(I)(B)(l) is inapplicable, and we
1 MPEP § 804(I)(B)(l) is still inapplicable even though we reverse the
Examiner's§ 103 rejection because the '886 application has since issued as
U.S. Patent No. 9, 195,954 patent ("'954 patent").
3
Appeal2014-006411
Application 12/817,553
sustain the Examiner's provisional rejection for obviousness-type double
patenting. 23
Obviousness
Appellants argue that the combination of Strelling and Sachedina does
not teach or suggest "an autonomic operator adjustment mechanism residing
in the memory and executed by the at least one processor ... [that]
autonomically adjust[ s] an authorization for the selected operator" as recited
in claim 1 and as similarly recited in corresponding limitations in claim 15.
(App. Br. 6-8; Reply Br. 3--4.) The Examiner finds paragraphs 70-71, 97,
102-104, 118, and 126-132 of Sterling teach or suggest the disputed
limitations. (Final Act. 9-10; Ans. 16-17.) The Examiner further finds
"Sterling discloses a non-limiting application of human resource
management that contains" a "combination of workflow tools, database
technology, reporting tools and supporting ... delivery mechanisms." (Ans.
16.) We have reviewed the cited disclosures and the Examiner's findings.
We do not find that the cited disclosures teach, suggest, or otherwise render
obvious the disputed limitations.
The Specification defines "autonomically adjust" as "adjustment of
the operator authorization .... " (Spec. i-f 62.) Neither the cited passages in
Strelling nor the Examiner's rationale for rejecting claim 1 for obviousness
2 In light of our disposition, we do not need to address whether Appellants'
challenge under MPEP § 804(I)(B)(l) was waived because it should have
been brought via petition, rather than through appeal, or whether this
provision of the MPEP is binding.
3 The '886 application issued as the '954 patent. Therefore, unless
amendments were made to the claims of the '886 application that obviated
the provisional obviousness-type-double-patenting rejection, the rejection is
now non-provisional. In re Wetterau, 356 F.2d 556, 558 (CCPA 1966).
4
Appeal2014-006411
Application 12/817,553
address the adjustment of operator authorization. For example, although
workflow tools, database technology, reporting tools and supporting delivery
mechanisms can be used to adjust operator authorization, they have a
multitude of other uses. Accordingly, their mere disclosure does not teach,
suggest, or otherwise render obvious adjusting operator authorization.
Therefore, we sustain neither the rejection under 35 U.S.C. § 103 of
independent claims 1 and 15 nor of their dependent claims 2---6 and 16-20.
DECISION
We affirm the provisional obviousness-type-double-patenting
rejection of claims 1---6 and 15-20 (while noting that the '886 application has
issued as the '954 patent).
We reverse the rejection under 35 U.S.C. § 103 of claims 1---6 and 15-
20.
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
5