Ex Parte Tewari et al

Patent Trial and Appeal BoardNov 12, 2013

11541056 (P.T.A.B. Nov. 12, 2013)

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. 11/541,056 09/29/2006 Swati Tewari 5868-00159 1518 26753 7590 11/13/2013 ANDRUS, SCEALES, STARKE & SAWALL, LLP 100 EAST WISCONSIN AVENUE, SUITE 1100 MILWAUKEE, WI 53202 EXAMINER MANSFIELD, THOMAS L ART UNIT PAPER NUMBER 3683 MAIL DATE DELIVERY MODE 11/13/2013 PAPERPAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE 1 ___________ 2 3 BEFORE THE PATENT TRIAL AND APPEAL BOARD 4 ___________ 5 6 Ex parte SWATI TEWARI, 7 MICHAEL ROBERT BOURKE, 8 JASON FAMA, 9 and SHMUEL KORENBLIT 10 ___________ 11 12 Appeal 2011-006883 13 Application 11/541,056 14 Technology Center 3600 15 ___________ 16 17 18 Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and 19 NINA L. MEDLOCK, Administrative Patent Judges. 20 FETTING, Administrative Patent Judge. 21 DECISION ON APPEAL 22 Appeal 2011-006883 Application 11/541,056 2 STATEMENT OF THE CASE1 1 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed August 18, 2010) and Reply Brief (“Reply Br.,” filed January 12, 2011), and the Examiner’s Answer (“Ans.,” mailed November 12, 2010). Swati Tewari, Michael Robert Bourke, Jason Fama, and Shmuel 2 Korenblit (Appellants) seek review under 35 U.S.C. § 134 of a final 3 rejection of claims 1-7, 9-18, and 20, the only claims pending in the 4 application on appeal. We have jurisdiction over the appeal pursuant to 5 35 U.S.C. § 6(b). 6 The Appellants invented a way of scheduling of a workforce 7 (Specification para 001). 8 An understanding of the invention can be derived from a reading of 9 exemplary claim 1, which is reproduced below [bracketed matter and some 10 paragraphing added]. 11 1. A method of operating a computer system 12 to perform partial shift swapping, 13 the method comprising the steps of: 14 [1] generating a schedule comprising a plurality of shifts; 15 [2] in the computer system: 16 [3] receiving a partial shift swap request 17 to swap a portion of a shift from an offering agent 18 to an accepting agent, 19 the shift having 20 a date 21 and 22 Appeal 2011-006883 Application 11/541,056 3 at least one time range 1 indicating the portion of the shift time 2 range to be re-assigned to the 3 accepting agent; 4 [4] determining a disposition of the partial shift swap 5 request 6 by applying a set of criteria 7 associated with a hard validation rule 8 to the partial shift swap request; 9 [5] if the partial shift swap request is denied 10 based on the hard validation rule, 11 denying the partial shift swap request; 12 [6] if the partial shift swap request is not denied 13 based on the hard validation rule, 14 applying a set of criteria 15 associated with a soft validation rule 16 to the partial shift swap request; 17 [7] if the partial shift swap request is not approved 18 based on the soft validation rule, 19 providing the partial shift swap request for review; 20 and 21 [8] if the disposition indicates the partial shift swap 22 request is approved, 23 updating the schedule 24 to reflect the partial shift swap request. 25 The Examiner relies upon the following prior art: 26 DeSilva WO 2004/107119 A2 Dec. 9, 2004 Appeal 2011-006883 Application 11/541,056 4 Claims 1-7, 9-18, and 20 stand rejected under 35 U.S.C. § 102(b) as 1 anticipated by DeSilva. 2 ISSUES 3 The issue of anticipation turns primarily on whether DeSilva applies its 4 hard constraints to shift swapping as recited in limitations [4] and [5]. 5 FACTS PERTINENT TO THE ISSUES 6 The following enumerated Findings of Fact (FF) are believed to be 7 supported by a preponderance of the evidence. 8 Facts Related to Claim Construction 9 01. "Hard" validation rules are those which cause the request to fail 10 if violated. Spec. 9. 11 Facts Related to the Prior Art 12 DeSilva 13 02. DeSilva is directed to providing an improved ability to schedule 14 staffing resources. DeSilva, para. [0001]. 15 03. DeSilva defines hard constraints as being mandatory scheduling 16 criteria, and soft constraints as being optional scheduling criteria. 17 DeSilva, para. [0011]. 18 04. Data relating to staff preferences, staff hired profiles, demand 19 profiles, scheduling guidelines and history may be further 20 classified as either hard constraints or soft constraints, according 21 to management choice. The effect of a classification of data as a 22 hard constraint is that rules related to hard constraints will not be 23 Appeal 2011-006883 Application 11/541,056 5 violated by the scheduling system. Rules related to soft 1 constraints may be violated in some circumstances, but such 2 instances will be minimized. DeSilva, para. [0023]. 3 05. Shift swap messaging step 135 relates to staff-requested 4 adjustments to one or more shifts within the planning horizon. In 5 the illustrated embodiment, the adjustment is a proposed swap of 6 shift between two workers. In another embodiment shift-swap 7 messaging could be replaced with a request to add or drop a shift; 8 in other words, a worker could seek to decrease or increase their 9 scheduled shifts or hours within the planning horizon of the unit 10 schedule output in step 125. In the alternative, or in combination 11 with other embodiments already described, messaging step 135 12 can include a method for co11l1ilunicating the output unit 13 schedule to staff. DeSilva, para. [0028]. 14 06. The unit schedule's output in step 125 may stand without 15 modification, or may be modified by daily scheduling step 130 16 and/or shift swap messaging step 135. DeSilva, para. [0029]. 17 07. The alternative schedule is a set of shift assignments for the 18 selected resource. Alternative schedules are generated by starting 19 with the initial schedule, and making incremental substitutions or 20 other changes to the initial schedule. DeSilva, para. [0042]. 21 08. The process determines whether the alternative schedule is 22 redundant with a previously scored alternative schedule for the 23 selected resource. If the alternative schedule is not redundant, 24 then the process determines whether the alternative schedule for 25 Appeal 2011-006883 Application 11/541,056 6 the selected resources meets hard constraints. DeSilva, para. 1 [0044]. 2 09. If the alternative schedule is redundant or does not satisfy hard 3 constraints, then the alternative schedule is deleted. On the other 4 hand, if the alternative schedule is not redundant and meets the 5 hard constraints, then the process calculates and stores a penalty 6 score for the alternative schedule. The penalty score in the 7 optimization step relates to the violation of soft constraints. 8 DeSilva, para. [0045]. 9 10. Fig. 8 is a process flow diagram for the shift swap messaging 10 step 135 in Fig. 11. The process begins in step 805 by reading a 11 unit schedule, and then advances to step 810 to receive a selection 12 of a shift to unschedule. For a selected shift, the system will 13 identify swap candidates in step 815 based in part on the received 14 scheduling constraints in step 105 and the unit schedule provided 15 in step 125. DeSilva, para. [0071]. 16 11. If a user decides in conditional step 820 to contact employees 17 identified as swap candidates to offer a shift swap, then the system 18 will send a message to these selected swap candidates in step 825 19 (otherwise the processes is ended in step 840). The message in 20 step 825 may be private (i.e., seen only by the sender and intended 21 recipient). If no swap candidates respond, then the output of 22 conditional step 830 is negative, and the shift-swap messaging 23 process 135 is ended. If, however, candidates do respond, then it 24 Appeal 2011-006883 Application 11/541,056 7 is determined in step 835 whether their response was positive or 1 negative. DeSilva, para. [0072]. 2 12. Where the output of conditional step 835 is positive, the system 3 sends a shift swap message for approval to a supervisor, manager, 4 or other administrator in step 845. The process then advances to 5 conditional step 850 for management approval. Where the output 6 of conditional step 835 is negative, the process advances to step 7 838 where a rejection message is sent (indicating that the 8 contacted candidate does not wish to swap shifts). DeSilva, para. 9 [0073]. 10 13. Where the output of conditional step 850 is positive, a manager 11 has approved one alternative from the one or more potential swaps 12 accepted by swap candidates, and the system will send an 13 approval message, if appropriate, and any and all denial messages 14 that are appropriate in step 855. Where the output of approval step 15 850 is negative, the process will advance to step 860, where denial 16 messages will be sent (indicating that at least one swap was not 17 approved), before ending in step 840. The shift-swap messaging 18 described with reference to Fig. 8 is preferably private messaging, 19 such as person-to-person email correspondence. DeSilva, para. 20 [0074]. 21 ANALYSIS 22 We are persuaded by the Appellants’ argument that hard and soft 23 constraints do not apply to shift swapping in DeSilva. Appeal Br. 6. The 24 Examiner responds that “DeSilva teaches in at least paragraphs 9-13, 20-23, 25 Appeal 2011-006883 Application 11/541,056 8 34, and 71 and including at least FIG's 1-6 and 9, that for optimizing a 1 staffing schedule, hard and soft constraints must be met, hard constraints 2 being mandatory scheduling candidates being able to swap schedules with 3 other candidates as part of staff changes and identify swap candidates based 4 in part of the received scheduling constraints and unit schedule.” Ans. 8. 5 While we agree that DeSilva describes both the use of hard and soft 6 constraints and shift swapping in these paragraphs, DeSilva never describes 7 using the hard and soft constraints with the shift swapping. As Appellants 8 argue, DeSilva also describes optimization in these paragraphs, and 9 describes the use of hard constraints only in the context of the original 10 schedule and optimization, not with shift swapping. 11 The Examiner’s findings only show that DeSilva described all of the 12 recited limitations in the same set of paragraphs, not that DeSilva determines 13 a disposition of the partial shift swap request by applying a set of criteria 14 associated with a hard validation rule to the partial shift swap request, and, if 15 the partial shift swap request is denied based on the hard validation rule, 16 denying the partial shift swap request. 17 Although the Examiner found that DeSilva teaches at least one aspect of 18 optimizing a staffing schedule includes the embodiment of shift swap 19 requests (Ans. 8), the Examiner cites paragraphs 11-13 as describing this, 20 but paragraph 11, describing optimization and constraints, is a description of 21 the initial schedule, and paragraphs 12 and 13 describe shift swapping 22 subsequent to that initial schedule. Thus, the Examiner failed to show 23 DeSilva describing limitations [4] and [5]. 24 Appeal 2011-006883 Application 11/541,056 9 Independent claim 10 has equivalent limitations and those are also not 1 described by DeSilva. 2 NEW GROUND OF REJECTION 3 The following new ground of rejection is entered pursuant to 4 37 C.F.R. § 41.50(b). Claims 1 and 10 are rejected under 35 U.S.C. § 103(a) 5 as unpatentable over DeSilva. Although DeSilva fails to explicitly show 6 limitations [4] and [5] of claim 1, these are simply predictable criteria and 7 dispositions. 8 First, swap requests would be predictably evaluated for their effects on 9 schedules, hence it was predictable to apply hard and soft criteria for doing 10 so. The labels hard and soft merely stand for criteria that are required or 11 permissive. Both required and permissive criteria are known to anyone 12 whoever had to schedule his or another’s work. 13 Hard criteria are required, and so it is predictable that denial of a swap 14 request based on a hard criterion would necessarily be honored. Soft criteria 15 are permissive rather than required, and so it is predictable that lack of 16 approval based on a permissive criterion might be submitted for review. It is 17 not only predictable, but essential, that schedules be updated to reflect any 18 changes occurring as a result. 19 CONCLUSIONS OF LAW 20 The rejection of claims 1-7, 9-18, and 20 under 35 U.S.C. § 102(b) as 21 anticipated by DeSilva is improper. 22 Claims 1 and 10 are newly rejected under 35 U.S.C. § 103(a) as 23 unpatentable over DeSilva. 24 Appeal 2011-006883 Application 11/541,056 10 DECISION 1 The rejection of claims 1-7, 9-18, and 20 is reversed. 2 Claims 1 and 10 are newly rejected under 35 U.S.C. § 103(a) as 3 unpatentable over DeSilva. 4 This Decision contains a new rejection within the meaning of 37 C.F.R. 5 § 41.50(b) (2011). 6 Our decision is not a final agency action. 7 37 C.F.R. § 41.50(b) provides that Appellants, WITHIN TWO 8 MONTHS FROM THE DATE OF THE DECISION, must exercise one of 9 the following two options with respect to the new rejection: 10 (1) Reopen prosecution. Submit an appropriate amendment of 11 the claims so rejected or new evidence relating to the claims 12 so rejected, or both, and have the matter reconsidered by the 13 Examiner, in which event the proceeding will be remanded 14 to the Examiner. . . . 15 (2) Request rehearing. Request that the proceeding be reheard 16 under § 41.52 by the Board upon the same record. . . . 17 No time period for taking any subsequent action in connection with this 18 appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 19 § 1.136(a)(1)(iv) (2011). 20 REVERSED; 37 C.F.R. § 41.50(b) 21 22 23 24 mp 25