Ex Parte Brown

Board of Patent Appeals and Interferences

Sep 13, 2006

09950526 (B.P.A.I. Sep. 13, 2006)

The opinion in support of the decision being entered today was not written
for publication in and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte ROBERT G. BROWN
___________

Appeal No. 2006-1514
Application No. 09/950,526
Technology Center 3600
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ON BRIEF
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Decided: September 13, 2006
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Before HORNER, NAPPI, and FETTING, Administrative Patent Judges.
FETTING, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. §134 from the examiner's final rejection of
claims 1 through 25, which are all of the claims pending in this application.

We AFFIRM.
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Appeal Number: 2006-1514
Application Number: 09/950,526

BACKGROUND

The appellant's invention relates to a method of generating a sales modeling baseline. An
understanding of the invention can be derived from a reading of exemplary claim 1, which is
reproduced below.
1. A method for generating a modified sales baseline for a product, said method
comprising:
storing an original baseline;
receiving a plurality of consumer purchasing characteristics, each of said
consumer purchasing characteristics representing a behavior of consumers with
respect to said product, said consumer purchasing characteristics including pantry
loading;
receiving promotion information, said promotion information including quantities
of said product sold during a promotion of said product; and
modifying said original baseline in response to said consumer purchasing
characteristics and said promotion information.

PRIOR ART
The prior art reference of record relied upon by the examiner in rejecting the appealed
claims is:
Abraham and Lodish, An Implemented System For Improving Promotion Productivity Using
Store Scanner Data, Marketing Science, Vol. 12, No. 3, Summer 1993, pp. 248-269 (Abraham)
REJECTIONS
Rather than reiterate the conflicting viewpoints advanced by the examiner and the appellant
regarding the above-noted rejections, we make reference to the examiner's answer (mailed
February 2, 2006) for the reasoning in support of the rejection, and to appellant’s brief (filed
November 8, 2004) and reply brief (filed February 27, 2006) for the arguments thereagainst.
Claims 1 through 8, 10, and 11 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Abraham.
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Appeal Number: 2006-1514
Application Number: 09/950,526
Claims 9 and 12 through 25 stand rejected under 35 U.S.C. § 103 as obvious over Abraham.
The rejection of claims 1 through 13 under 35 U.S.C. § 101 has been withdrawn by the
examiner. [See Answer at p. 2].
OPINION
In reaching our decision in this appeal, we have given careful consideration to appellant’s
specification and claims, to the applied prior art reference, and to the respective positions
articulated by appellant and the examiner. As a consequence of our review, we make the
determinations that follow.
Claims 1 through 8, 10, and 11 rejected under 35 U.S.C. § 102(b) as anticipated by Abraham.
We note that the appellant argues these claims as a group. Accordingly, we select claim 1 as
representative of the group.
The appellant argues that Abraham fails to describe the two claim limitations of “consumer
purchasing characteristics representing a behavior of consumers with respect to said product,
said consumer purchasing characteristics including pantry loading” and “modifying said original
baseline in response to said consumer purchasing characteristics and said promotion
information.” The appellant goes on to argue that these limitations are long term effects, and
Abraham explicitly ignores long term effects. The appellant then points out that the term
“cannibalization” used in Abraham is not pantry loading. The appellant then argues that
Abraham fails to describe modifying the original baseline based on customer purchasing
characteristics and promotion information. [See Brief at p. 10-12].
The examiner responds that cannibalization is based on the same concept as pantry loading,
because a consumer purchases more goods than normal when goods are placed on sale. The
examiner points out the following excerpt from Abraham to support this argument:
[s]ome of the incremental sales during the short term may be accounted for by
purchase acceleration of loyal users who purchased earlier or a larger quantity
than they normally would have. This purchase acceleration phenomenon causes
cannibalization of future sales of the brand in the same store or possibly in other
stores and needs to be subtracted from short-term incremental sales to get long-
term incremental volume. [See Abraham p. 250].
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Appeal Number: 2006-1514
Application Number: 09/950,526
The examiner then argues that pantry loading has short as well as long term effects and that
the claims do not specify a time period for measuring effects. The examiner further argues that
Abraham does, contrary to the appellant’s argument, address long term analysis at pp. 266-268.
The examiner concludes that Abraham’s baseline modification must consider the effects of
pantry loading. [See Answer at p. 10-13].
The appellant, in turn, responds that cannibalization refers to situations where consumers
purchase a product from one store in lieu of another store, rebutting the examiner’s argument that
cannibalization is equivalent to pantry loading, and repeats the argument that pantry loading is a
long term effect, and that Abraham explicitly ignores long term effects. [See Reply Brief at p. 2]
We note that much of the arguments between the examiner and the appellant relate to the
meaning of the phrase “pantry loading.” The appellant’s disclosure states that “pantry loading”
is where “consumers take advantage of promotions and essentially stockpile their ‘pantries’ with
a large quantity of a given product for eventual, future consumption.” [See Specification at p.
3].
We decline the invitation to decide whether “pantry loading” is equivalent to
“cannibalization,” because closer inspection of the above extract from Abraham reveals that the
subject of that portion is purchase acceleration, which may in turn cause cannibalization.
Although Abraham does not explicitly define the term “purchase acceleration,” the term’s
meaning is clear on its face, i.e. the acceleration, or quickening in time, of purchase. We note
that this is an equivalent concept to stockpiling for eventual consumption, which is the
appellant’s definition for pantry loading. Now that we have found that Abraham speaks to
pantry loading, the remaining issue is whether it modifies the baseline as a result. We note that
the above recited passage from Abraham answers this question directly by stating that purchase
acceleration “needs to be subtracted from short-term incremental sales to get long-term
incremental volume.” We find that subtracting data from a baseline is a form of modifying the
baseline, and therefore, Abraham does modify its baseline as a result of the effects of pantry
loading. Therefore, we find the appellant's arguments to be unpersuasive.
Accordingly we sustain the examiner's rejection of claims 1 through 8, 10, and 11 rejected
under 35 U.S.C. § 102(b) as anticipated by Abraham.
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Appeal Number: 2006-1514
Application Number: 09/950,526
Claims 9 and 12 through 25 rejected under 35 U.S.C. § 103 as obvious over Abraham.
The appellant has argued all claims together and accordingly we sustain the examiner's
rejection of claims 9 and 12 through 25 rejected under 35 U.S.C. § 103 as obvious over Abraham
for the reasons stated above.
CONCLUSION
To summarize,
• The rejection of claims 1 through 8, 10, and 11 rejected under 35 U.S.C. § 102(b) as
anticipated by Abraham is sustained.
• The rejection of claims 9 and 12 through 25 rejected under 35 U.S.C. § 103 as obvious
over Abraham is sustained.
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR § 1.136(a).
AFFIRMED

ROBERT E. NAPPI )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LINDA E. HORNER ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ANTON W. FETTING )
Administrative Patent Judge )

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Appeal Number: 2006-1514
Application Number: 09/950,526
STEVEN I. WEISBURD
DICKSTEIN SHAPIRO MORIN & OSHINSKY, LLP
1177 AVENUE OF THE AMERICA
41 ST. FLOOR
NEW YORK, NY 10036-2714

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