Ex Parte Sherer et al

Patent Trial and Appeal Board

Dec 28, 2017

13768427 (P.T.A.B. Dec. 28, 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.
13/768,427 02/15/2013 Thomas E. Sherer B86918 1320US.1 (0052.1) 5374
128836 7590 01/02/2018
WOMBLE BOND DICKINSON (US) LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-0037
EXAMINER
DIVELBISS, MATTHEW H
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
01/02/2018 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):
patentadmin @ B oeing. com
ipdocketing @ wbd-u s. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS E. SHERER, DAVID L. GROSE, and
SCOTT D. BUTTON1
Appeal 2016-005471
Application 13/768,427
Technology Center 3600
Before BRADLEY W. BAUMEISTER, JEREMY J. CURCURI, and
NABEEL U. KHAN, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1-21. App. Br. I.2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellants list The Boeing Company as the assignee and real party in
interest. Appeal Brief filed November 9, 2015 (“App. Br.”) 1.
2 Rather than repeat the Examiner’s positions and Appellants’ arguments in
their entirety, we refer to the above-mentioned Appeal Brief, as well as the
following documents for their respective details: the Final Action mailed
August 6, 2015 (“Final Act.”); the Examiner’s Answer mailed March 18,
2016 (“Ans.”); and the Reply Brief filed April 22, 2016 (“Reply Br.”).
Appeal 2016-005471
Application 13/768,427
STATEMENT OF THE CASE
Appellants describe the present invention as follows:
A method is provided that includes receiving a plan model
for a process including a plurality of tasks, and generating a
layout including a network diagram that expresses the plan
model. The method also includes simulating execution of the
plan model, and dynamically updating the network diagram to
reflect an actual task duration tracked for each task during the
simulation. The network diagram includes along a time-directed
axis, a plurality of task nodes that express respective tasks, with
each task node being expressed as a first multi-dimensional
shape having an outline with a dimension along the axis sized
according to a task duration for a respective task. In the updated
network diagram, then, each task node further includes a fill in
the same first multi-dimensional shape as the respective outline
but with a dimension along the axis sized according to the actual
task duration of the respective task.
Abstract.
Apparatus claim 1 and method claim 8, reproduced below, are
illustrative of the appealed claims:
1. An apparatus for implementation of a plan executor, the
apparatus comprising a processor and a memory storing
executable instructions that, in response to execution by the
processor, cause the apparatus to implement at least:
a layout engine configured to receive a plan model for an
aircraft development process including a plurality of tasks to
produce respective internal products corresponding to respective
components of the aircraft, and generate a layout including a
network diagram that expresses the plan model, the network
diagram including along a time-directed axis, a plurality of task
nodes that express respective tasks of the aircraft development
process, each task node being expressed as a first multi­
dimensional shape having an outline with a dimension along the
axis sized according to a task duration for a respective task; and
2
Appeal 2016-005471
Application 13/768,427
a simulator coupled to the layout engine and configured to
simulate execution of the plan model, the simulator being
configured to track and communicate to the layout engine, actual
task duration of each task during the simulation, the layout
engine being configured to dynamically update the network
diagram during the simulation to reflect the actual task duration,
wherein in the updated network diagram, each task node further
includes a fill in the same first multidimensional shape as the
respective outline but with a dimension along the axis sized
according to the actual task duration of the respective task.
8. A method comprising:
receiving a plan model for an aircraft development process
including a plurality of tasks to produce respective internal
products corresponding to respective components of the aircraft;
generating a layout including a network diagram that
expresses the plan model, the network diagram including along
a time-directed axis, a plurality of task nodes that express
respective tasks of the aircraft development process, each task
node being expressed as a first multi-dimensional shape having
an outline with a dimension along the axis sized according to a
task duration for a respective task;
simulating execution of the plan model, including tracking
actual task duration of each task during the simulation; and
dynamically updating the network diagram during the
simulation to reflect the actual task duration, wherein in the
updated network diagram, each task node further includes a fill
in the same first multi-dimensional shape as the respective
outline but with a dimension along the axis sized according to
the actual task duration of the respective task.
App. Br. 14, 16 (Claims Appendix).
Claims 1-21 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter. Final Act. 3.
3
Appeal 2016-005471
Application 13/768,427
Claims 1, 2, 5-9, 12-16, and 19-21 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Grose (US 2008/0319719 Al; published
Dec. 25, 2008), Bahrami (US 2004/0078777 Al; published Apr. 22, 2004),
and Pederson (US 2009/0164933 Al; published June 25, 2009). Final
Act. 5.
Claims 3,4, 10, 11, 17, and 18 over the combination of Grose,
Bahrami, Pederson, and Kennedy (US 5,764,543; issued June 9, 1998).
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
THE § 101 REJECTION
Overview of Findings and Contentions
The Examiner finds that method claims 8-14 are directed to an
abstract idea because the claims recite “a method of organizing human
activity with ah or a majority of the [claim steps] recited at a high level of
generality and merely acted upon by a user.” Final Act. 3. The Examiner
further finds that the elements of the claimed process, when taken in
combination, do not recite significantly more than the abstract idea itself. Id.
at 4. According to the Examiner, the steps performed by the computer
constitute recitations of well-known computer functions that do not add
significantly more to the abstract idea. Id. The Examiner likewise finds that
the structures recited in apparatus, system, and computer-readable-media
4
Appeal 2016-005471
Application 13/768,427
claims 1-7 and 15-21 do not add significantly more to the abstract idea. Id.
at 4-5.
Appellants contend that the Examiner erred in rejecting the claims as
being directed to non-statutory subject matter. App. Br. 5. In support of this
position, Appellants argue that the Examiner erred in finding the claims to
be directed to an abstract idea (id. at 6-8) and in finding that the claims do
not add significantly more (id. at 8-9). We address the details of these
arguments in the Analysis section, below.
Principles of Law
Patent eligibility is a question of law that is reviewable de novo.
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012).
In determining whether the claims set forth patent eligible subject
matter under 35 U.S.C. § 101, we first must determine whether the claims at
issue are directed to laws of nature, natural phenomena, or abstract ideas.
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 714 (Fed. Cir. 2014). In
considering whether a claim is directed to an abstract idea, we acknowledge,
as did the Court in Mayo, that “all inventions at some level embody, use,
reflect, rest upon, or apply laws of nature, natural phenomena, or abstract
ideas.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
71 (2012). We, therefore, look to whether the claims focus on a specific
means or method that improves the relevant technology or are instead
directed to a result or effect that itself is the abstract idea and merely invoke
generic processes and machinery. See Enfish, LLC v. Microsoft Corp., 822
F.3d 1327, 1336 (Fed. Cir. 2016).
If a claim is directed to an abstract idea, we then must consider
whether the claim contains an element or a combination of elements that is
5
Appeal 2016-005471
Application 13/768,427
sufficient to transform the nature of the claim into a patent-eligible
application. Ultramercial, 772 F.3d at 714; Alice Corp. Pty. Ltd. v. CLS
Bank Intern., 134 S.Ct. 2347, 2355 (2014).
In applying step two of the Alice analysis, we must
“determine whether the claims do significantly more than simply
describe [the] abstract method” and thus transform the abstract
idea into patentable subject matter. ... We look to see whether
there are any “additional features” in the claims that constitute
an “inventive concept,” thereby rendering the claims eligible for
patenting even if they are directed to an abstract idea.. . . Those
“additional features” must be more than “well-understood,
routine, conventional activity.”
Intellectual Ventures ILLC v. Erie Indemnity Company, 850 F.3d 1315,
1328 (Fed. Cir. 2017) (citations omitted).
“[CJlaims [that] merely require generic computer implementation[]
fail to transform [an] abstract idea into a patent-eligible invention.” Id.
(citing Alice, 134 S.Ct. at 2357).
Analysis
I.
Appellants first argue that the Examiner erred in finding the claims
are directed to the abstract idea of organizing human activity because the
Examiner relies upon an example in one of the USPTO’s Subject-Matter-
Eligibility guidelines3 that discusses a method of playing the game of Bingo.
App. Br. 6-7. Appellants argue that the present invention is not directed to
3 July 2015 Update: Subject Matter Eligibility, available at
https://www.uspto.gov/sites/default/files/documents/ieg-july-2015-
update.pdf.
6
Appeal 2016-005471
Application 13/768,427
“more nebulous concepts of hedging, risk mitigation, or electronically
managing sets of Bingo numbers and data.” Id. at 7.
Appellants point out that “the claimed invention is related to at least
generation of a network diagram that expresses a plan model for an aircraft
development process, simulation of execution of the plan model, and
dynamic update of the network diagram during the simulation.” Id. at 6.
According to Appellants, “the claims in the present application address the
challenge of cost/schedule overruns in large-scale product development
programs such as those for the planning and production of large commercial
or military aircraft. Id. at 7.
Appellants urge that their claims address
a challenge particular to process planning technology—and in
particular computer-aided process planning technology—for
complex projects. The present claims do not merely recite the
performance of some known business practice along with the
requirement to perform it on a computer. Instead, the claimed
solution is necessarily rooted in computer technology.
Id. at 7-8 (citing DDR Holdings, LLC v. Hotels.com, L.P, 773 F.3d 1245,
1257 (Fed. Cir 2014)).
We acknowledge Appellants’ point that their invention is not directed
to playing a game of Bingo or financial hedging. But this fact is not
dispositive of whether the claims are directed to patent eligible subject
matter. The Examiner did not base the rejection on the theory that
Appellants’ claims were directed to either of these specific types of
organizing human activity. Rather, we understand the Examiner to have
cited the specific Bingo example to support the broader position that the
courts have found organizing human activities can constitute an abstract
idea.
7
Appeal 2016-005471
Application 13/768,427
We agree with the Examiner that claim 8 sets forth such a type of
method of organizing human activities that constitutes an abstract idea.
Process planning, per se, is a quintessential example of organizing human
activity, as it historically has been a fundamental aspect of any manager’s
job responsibilities. Managers in all fields of industry, government, and
sport decide for their employees and teams what work shall be undertaken,
by whom, and in what order. The details of large projects may be too great
to be memorized, but in these situations, the work-scheduling plans
commonly were reduced to writing with pencil and paper.
One common example of how large projects historically have been
planned is through the use of workflow plan diagrams that include task
blocks, indications of the tasks’ ordering and dependencies, and depictions
of critical-path tasks. See e.g. Spec. 1:17-2:6. Project planners commonly
tracked a project’s progress by recording status information on the workflow
plan diagrams. For recurring large projects,4 project planners also
commonly revised their workflow plan diagrams for future instances of the
project based upon lessons learned from previous instances of the recurring
project. That is, project planners commonly used past-project results as
feedback to help simulate and model future projects, and they would update
their project models for future instances of the large project based upon the
results of these simulations.
4 One example of such a recurring large project is the months-long
inspection, testing, and maintenance of a nuclear power station’s electro­
mechanical piping and instrumentation control systems, which is undertaken
roughly every 18 months during a reactor-refueling power outage.
8
Appeal 2016-005471
Application 13/768,427
Furthermore, probability risk assessment (PRA) was another well-
known and long-used methodology for planning complex engineering
projects. PRA entails planning for detrimental outcomes in an activity or
action by quantizing (1) the likelihood of an adverse event; and (2) the
severity of the associated adverse consequences. As such, simulating the
execution of a plan model with a computer (e.g., by performing a Monte
Carlo analysis, as described in Appellants’ Spec. 17:3-11) merely entails
using computers in their conventional manner to help perform the task of
organizing human activities (e.g., model project events and outcomes),
which was previously performed by humans, in a more efficient manner.
Appellants do not allege that it was unknown for humans to use such
workflow planning diagrams prior to the advent of the internet and computer
networks. Appellants do not allege that it was unknown for humans to
undertake project planning by performing mental simulations of workflow
planning models (e.g., estimating the likelihood that an activity would
experience undue delay and determining what factors of safety need to be
built into activity-time projections). See generally App. Br., Reply Br.
We disagree with Appellants’ assertion that the present invention is
rooted in computer technology. See App. Br. 7-8. We do not doubt that
computer-aided planning software greatly assists the creation of workflow
plan diagrams for very complex projects, such as the planning and
production of military aircraft. The use of such software and computer
programs arguably may even be necessary in some instances. This
presumed fact does not mean the problem to be solved necessarily is rooted
in computer technology. See DDR Holdings, 773 F.3d 1257. Rather, such
examples merely indicate that computers can be used in their conventional
9
Appeal 2016-005471
Application 13/768,427
manner to allow conventional methods of organizing human activity to be
used for completing large complex projects more efficiently.
II.
We likewise disagree with Appellants’ assertion that the Examiner
erred in determining that the claims do not add significantly more. App.
Br. 8-9. Appellants contend that “the claims address the problem of
cost/schedule overruns in large-scale product development programs that
may not be otherwise seen in the case of existing process planning
methods.” Id. at 8. Problems with schedule and cost overruns, though, long
existed in projects of all sizes, and they existed well before the advent of the
internet. Appellants’ invention, as claimed, appears to be directed towards
automating the creation of workflow plan diagrams and revising the same
after simulation-testing the plan.
Appellants provide insufficient evidence to support their argument
that the elements of the claims, taken either individually or as an ordered
combination, add significantly more to the abstract idea of organizing human
activity. This is particularly so when Appellants’ argument is weighed
against the Examiner’s findings, which have a foundation in Appellants’
Specification. Appellants merely restate the language of claim 1 without
providing sufficient reasoning for why the claim language allegedly is
solving a problem rooted in computer technology, as opposed to merely
setting forth computer components that are used in their conventional
manner for performing abstract processes more efficiently:
[Independent Claim 1 recites an apparatus including
a) generation of a network diagram including task nodes sized
according to their task durations, b) simulation of execution of
the plan model and tracking of actual task durations, and
10
Appeal 2016-005471
Application 13/768,427
c) dynamic update of the network diagram in which the task
nodes further include a fill sized according to their actual task
durations. In this way, task durations in a plan model may be
viewed against actual task durations tracked during simulation of
execution of the plan model, which may provide information to
identify overruns and facilitate remedial actions to address them.
These additional limitations amount to more than simply stating
“apply the abstract idea on a computer.” Therefore, when taken
as a whole, the claimed invention has additional limitations that
amount to significantly more than the abstract idea. And
accordingly, the claims recite patent eligible subject matter.
App. Br. 8.
Furthermore, the Examiner provides a basis for finding that the
claimed computer elements are mere recitations of generic computer
components that add nothing of substance to the underlying abstract idea.
Final Act. 4-5 (citing Spec. 24:13-26:16). A review of this cited passage of
the Specification supports the Examiner’s finding. See, e.g., Spec. 24:13-16
(“The processor is generally any piece of hardware that is capable of
processing information such as, for example, data, computer-readable
program code, instructions or the like (generally ‘computer programs,’ e.g.,
software, firmware, etc.), and/or other suitable electronic information”);
Spec. 26:3-6 (“As will be appreciated, any suitable program code
instructions may be loaded onto a computer or other programmable
apparatus from a computer-readable storage medium to produce a particular
machine, such that the particular machine becomes a means for
implementing the functions specified herein”); Spec. 17:5-6 (“The
11
Appeal 2016-005471
Application 13/768,427
simulation may be carried out in a number of different manners, such as
according to a Monte-Carlo analysis”).5
Conclusions
Appellants do not persuade us the Examiner erred in concluding that
independent claims 1 and 8 are directed to patent-ineligible subject matter.
Accordingly, we affirm the § 101 rejection of those claims, as well as the
rejection of claims 2-7 and 9-21, which Appellants do not argue separately.
See App. Br. 5-9, Reply Br. 1-5.
THE § 103 REJECTIONS
Examiner Findings
The Examiner finds that Grose discloses most of the apparatus
limitations of claim 1, such as a layout engine that generates a layout
including a network diagram. Final Act. 6-7. The Examiner finds that this
network diagram includes a time-directed axis, and a plurality of task nodes
that express respective tasks of the aircraft development process. According
to the Examiner, each task node is expressed as a multi-dimensional shape
having an outline with a dimension along the axis. Id.
The Examiner finds that Bahrami teaches task diagrams that are sized
according to a task duration for a respective task, as well as a simulator
coupled to the layout engine. Id. at 7-8 (citing Bahrami ^ 37-39).
According to the Examiner, Bahrami’s simulator simulates execution of the
5 “Monte Carlo simulation, or probability simulation, is a technique used to
understand the impact of risk and uncertainty in financial, project
management, cost, and other forecasting models.” What is Monto Carlo
Simulation? available at https://www.riskamp.com/files/RiskAMP%20-
%20Monte%20Carlo%20Simulation.pdf.
12
Appeal 2016-005471
Application 13/768,427
plan model, tracks task duration during the simulation, and communicates
this information to the layout engine. Id. (citing Bahrami 37-38). The
Examiner additionally finds that the layout engine is configured to
dynamically update the network diagram to reflect the actual task duration.
Id. at 8. The Examiner finds that motivation existed to combine the
teachings of Grose and Bahrami {id. at 8-9), but that the combination still
fails to teach that the dynamic updating of the network diagram specifically
occurs during the simulation or that the task nodes are filled along the
outlines according to the simulation’s actual task duration {id. at 9).
The Examiner finds that Pederson teaches a graphic display
representing an actual process (as opposed to a simulation) may be updated
in real time to show real-time status and or progress information. Id. at 9
(citing Pederson 52). The Examiner finds that Pederson’s depicted bar
graphs “include a fill in the shape of the graph that fills in the direction of
time as portions of the task are completed relative to time. Id. (citing
Pederson 9, 10, 43, 35; Figs. 4-6). The Examiner concludes that it would
have been obvious “to further utilize the filling of nodes based on [the]
completion of task parameters and/or the passage of time[,] as disclosed in
Pederson” within the display of the simulated execution of a network
information model, as taught by the combination of Gross and Bahrami. Id.
at 9-10.
The Examiner finds that one would have been motivated to update the
simulation display in this manner “to efficiently display the progress status
of the nodes in the workflow” because “the claimed invention is merely a
combination of old elements, and in combination each element merely
would have performed the same function as it did separately, and one of
13
Appeal 2016-005471
Application 13/768,427
ordinary skill in the art would have recognized that the results of the
combination were predictable.” Id.
Principles of Law
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. See In re
Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986).
Contentions and Analysis
In section 7.B(1) of the Appeal Brief, Appellants argue that Bahrami
does not teach tracking actual task duration and dynamically updating a
network diagram during the simulation. App. Br. 9-10. This argument is
unpersuasive because the Examiner relies upon Pederson—not Bahrami—
for teaching that Grose’s network diagram may be updated dynamically
during a simulation carried out according to Bahrami. Ans. 9 (finding that
Pederson “teaches the graphic displayed in the process graphic area may be
dynamically updated in real-time to show real-time status and/or progress
information”). It follows that in order to update the status in real-time,
Pederson also must track the task in real time.
In this section of the Appeal Brief, Appellants also argue that
“Bahrami does not disclose a network diagram” because it is unreasonable to
construe Bahrami’s Gantt chart as corresponding to the recited network
diagram. App. Br. 10. We need not decide whether a Gantt chart
reasonably may be interpreted as constituting a network diagram, as
claimed, because the Examiner additionally relies upon Grose for teaching
the network diagram. Final Act. 7.
14
Appeal 2016-005471
Application 13/768,427
In section 7.B(2) of the Appeal Brief, Appellants first argue the
Examiner erred in finding Pederson teaches “the graphic displayed in the
process graphic area may be dynamically updated in real-time to show real­
time status and/or progress information” because “Pederson does not
disclose that its graphic is a network diagram.” App. Br. At 10-11. This
argument is unpersuasive because the Examiner relied upon Grose—not
Pederson—for teaching network diagrams. Final Act. 7.
Appellants next argue that “Pederson does not disclose that its graphic
is updated during a simulation, similar to the network diagram of the
claimed invention.” App. Br. 11. According to Appellants, “Pederson does
disclose execution of a batch recipe, but Pederson does not disclose
simulation of execution of the batch recipe or any other simulation.” Id.
This argument is not persuasive because the Examiner relies upon the
combination of Grose and Bahrami—not Pederson—for teaching a graphical
display can represent a simulation instead of an actual process. Final Act. 9-
10.
In section 7.B(3) of the Appeal Brief, Appellants argue the Examiner
erred in finding that Pederson discloses “task nodes of a network diagram
each of which further includes a fill sized according to actual task duration.”
App. Br. 11. According to Appellants, Pederson, like Bahrami, discloses a
Gantt bar chart, and it would be unreasonable to interpret the claimed
network diagram as corresponding to a bar graph. Id. This argument is
unpersuasive because the Examiner relies upon Grose—not Pederson—for
teaching a network diagram having task nodes. Final Act. 6-7.
In section 7.B(4) of the Appeal Brief, Appellants challenge the
Examiner’s combination of Grose and Bahrami. App. Br. 11-12.
15
Appeal 2016-005471
Application 13/768,427
Appellants argue that “even given the modification of Grose to include
Bahraini’s simulator, this alone does not substantiate the proffered mashup
of Grose’s network diagram and Bahrami’s Gantt chart to teach the recited
network diagram.” Id. at 12. According to Appellants, “[t]he Examiner
provides absolutely no support for the conclusion” that “a person of ordinary
skill in the art would use [Bahrami’s Gantt chart] as a reference in
constructing a network diagram and would thereby understand the
incorporation of its various features.” Id. In Appellants’ view, the
combination “is the epitome of a broad conclusory statement that without
more cannot substantiate obviousness.” Id. Appellants expand upon this
argument in their Reply Brief:
It could be argued that the process constructed according to
Grose may be simulated according to Bahrami. But just because
both are directed to process management, it does not then simply
follow that the simulation of Bahrami would then lead back into
the process construction of Grose. And even if the simulation of
Bahrami led to a modification of the process constructed
according to Grose, it still does not follow that it would have
been obvious to mashup Grose’s network diagram with
Bahrami’s Gantt chart in either the process construction or
simulation.
Reply Br. 9-10.
We disagree with Appellants’ assertions that the rejection is based
upon only conclusory statements or that Examiner provides no support for
the proposed combination. The Examiner cited teachings of Grose and
Bahrami as evidence that “the claimed invention is merely a combination of
old elements.” Final Act. 8. And the Examiner reasoned that when
combined, “each element merely would have performed the same function
as it did separately, and one or ordinary skill in the art would have
16
Appeal 2016-005471
Application 13/768,427
recognized that the results were predictable.” Id. at 8-9. “A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007).
We also disagree that the rejection is based on “a mashup” of
Bahrami’s Gantt chart in Grose’s process. See App. Br. 12; Reply Br. 9-10.
We do not understand the Examiner to be proposing that Bahrami’s Gantt
charts be physically incorporated into Grose’s network diagrams. We
instead understand the rejection’s premise to be more general—that
Bahrami’s simulations can be used in conjunction with Grose’s network-
diagram-and-node modeling process. Final Act. 6-9.
“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference. . . . Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981). “[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.” KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).
Conclusions
For the foregoing reasons, Appellants have not persuaded us of error
in the Examiner’s obviousness rejection of independent claim 1.
Accordingly, we sustain the Examiner’s rejection of that claim, as well as
claims 2, 5-9, 12-16, and 19-21, which Appellants do not argue separately.
App. Br. 13.
17
Appeal 2016-005471
Application 13/768,427
We likewise sustain the Examiner’s obviousness rejection of
claims 3,4, 10, 11, 17, and 18 over the combination of Grose, Bahrami,
Pederson, and Kennedy. Appellants have not particularly pointed out errors
in the Examiner’s reasoning regarding the additional teachings of Kennedy,
but merely assert that Kennedy does not cure the alleged deficiencies of the
Grose, Bahrami, and Pederson. Id.
DECISION
The Examiner’s decision rejecting claims 1-21 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)(1). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
18