Ex Parte Hoffman et al

Patent Trial and Appeal Board

Oct 3, 2012

09815731 (P.T.A.B. Oct. 3, 2012)

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.
09/815,731 03/23/2001 George Harry Hoffman 062834-0179 8181
22428 7590 10/03/2012
FOLEY AND LARDNER LLP
SUITE 500
3000 K STREET NW
WASHINGTON, DC 20007
EXAMINER
GORT, ELAINE L
ART UNIT PAPER NUMBER
3687
MAIL DATE DELIVERY MODE
10/03/2012 PAPER
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 GEORGE HARRY HOFFMAN, 7
DANIEL SECHRIST, 8
ANTHONY FRANK MENNINGER, 9
and MICHAEL JAMES BURK 10
___________ 11
12
Appeal 2011-013120 13
Application 09/815,731 14
Technology Center 3600 15
___________ 16
17
18
Before TERRY J. OWENS, ANTON W. FETTING, and 19
MICHAEL W. KIM, Administrative Patent Judges. 20
21
FETTING, Administrative Patent Judge. 22
23
24
DECISION ON APPEAL25
Appeal 2011-013120
Application 09/815,731

2

STATEMENT OF THE CASE1 1
George Harry Hoffman, Daniel Sechrist, Anthony Frank Menninger, 2
and Michael James Burk (Appellants) seek review under 35 U.S.C. § 134 3
(2002) of a final rejection of claims 1, 3-6, 8-11, and 13-15, the only claims 4
pending in the application on appeal. We have jurisdiction over the appeal 5
pursuant to 35 U.S.C. § 6(b) (2002). 6
The Appellants invented a form of the management of supply chains 7
(Spec. 1:Field of the Invention). 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 for providing an interface, comprising: 12
a) receiving data, 13
via a receiver unit, 14
from a plurality of stores 15
of a supply chain 16
utilizing a network, 17
the data relating to an amount of goods 18
that are manually produced 19
based on a recipe 20
and 21
sold by the stores; 22
b) aggregating 23
by one or more computers programmed to do so, 24
the data 25
based on one or more supplier and/or distributor 26
parameters; 27
c) receiving a request 28
relating to production of the goods; 29

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed May 3, 2011) and Reply Brief (“Reply Br.,” filed July 13, 2011),
and the Examiner’s Answer (“Ans.,” mailed June 3, 2011).
Appeal 2011-013120
Application 09/815,731

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d) extracting 1
in response to the request 2
the recipe 3
from the aggregated data 4
relevant to production of the goods 5
and 6
that uses 7
at least one material 8
in the production of the goods 9
and 10
an amount of the material 11
sold to at least one of the stores; 12
e) calculating 13
by one or more computers programmed to do so, 14
based on the recipe 15
an amount of the at least one material 16
that should have been used 17
for the amount of the goods sold by 18
the at least one of the stores; 19
f) calculating 20
by one or more computers programmed to do so, 21
a variance between 22
[f-1] the amount of the material, 23
that was actually used 24
for the amount of goods sold by 25
the at least one of the stores, 26
sold to the at least one of the stores 27
and 28
[f-2] the amount of the material that should have 29
been used 30
based on the recipe for the amount of the 31
goods sold; 32
and 33
g) transmitting information 34
relating to the variance 35
for use by one of 36
a supplier of the material to adjust a supply of the 37
material, 38
Appeal 2011-013120
Application 09/815,731

4

a distributor of the material to adjust a distribution 1
of the material, 2
a supply chain manager, 3
or 4
at least one of the stores using the material to make 5
the goods. 6
7
The Examiner relies upon the following prior art: 8
Hafner US 5,893,076 Apr. 6, 1999 9
Brown US 6,901,381 B2 May 31, 2005 10
11
Joe Myrick; The Silent Thief, 86 NPN, Nat’l Petroleum News, 56 (Dec. 12
1994) (hereinafter “Myrick”). 13
14
Claims 1, 3-6, 8-11, and 13-15 stand rejected under 35 U.S.C. § 15
103(a) as unpatentable over Brown, Hafner, and Myrick. 16
ISSUES 17
The issues of obviousness turn primarily on whether Myrick is 18
evidence of a notoriously well-known and widespread practice of 19
reconciling inventory. 20
FACTS PERTINENT TO THE ISSUES 21
The following enumerated Findings of Fact (FF) are believed to be 22
supported by a preponderance of the evidence. 23
Facts Related to the Prior Art 24
Brown 25
01. Brown is directed to an inventory control system of salable goods 26
that are being carried on a transport, such as for example a train, 27
that travels from a start location to an end location. Brown 1:8-12. 28
02. A train picks up inventory from a commissary and data relating to 29
the particular type of inventory and the amount of the inventory 30
are recorded. A POS device records items from the inventory that 31
Appeal 2011-013120
Application 09/815,731

5

are sold to the passengers of the train, and any items of the 1
inventory that conceivably become spoiled or unusable. The 2
ingredients, which may also be referred to as the recipe, that make 3
up each item are also recorded. Brown 5:1-23. 4
03. As the inventory gets depleted, the service agent may notice, by 5
means of a display on the POS device, that his inventory is 6
running low. At that time, he could replenish his inventory by 7
requisitioning additional items from commissary. Brown 5:24-29. 8
04. The inventory adjust module actively monitors the depletion of 9
the inventory stocked, and reports the changes in the available 10
items for sale back to the point of sale module. In addition, the 11
inventory adjust module accounts for the variation in ingredients 12
or recipes when calculating the available items for sale. In 13
addition, all transactions that occur, i.e., entered into the POS 14
device, are monitored. And the ingredients associated with the 15
items that are depleted during the trip are taken into consideration 16
in accordance with the file that contains the recipe for each of 17
those items that are sold. Brown 11:15-40. 18
05. When a sale is made for a particular item, the recipe for that item 19
is compared with the recipe database stored in the POS device. 20
The ingredients that are depleted by the sale of the item are 21
deducted from the menu item. Brown 11:41-59. 22
23
Hafner 24
06. Hafner is directed to supplier driven processing of business 25
transactions and interactive communications between a plurality 26
Appeal 2011-013120
Application 09/815,731

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of users within at least one industry including retailers and 1
suppliers. Hafner 1:5-11. 2
Myrick 3
07. Myrick is directed to describing the benefits of statistical 4
inventory reconciliation (SIR). Among those are detecting losses 5
(variances) due to tank integrity, delivery accuracy, pilferage 6
detection, incorrect tank charts, and dispensing meter 7
miscalibrations. Myrick Abstr. 8
08. Statistical inventory reconciliation (SIR) accurately manages fuel 9
inventory by analyzing daily fuel inventory readings (sales, 10
deliveries and product level). Myrick 1. 11
09. SIR is the only technology able to constantly identify meter 12
miscalibrations within a very tight tolerance. Myrick 2. 13
ANALYSIS 14
This is the second time this application has come before the Board. 15
The first time, the panel affirmed the Examiner’s rejection of all claims over 16
Hafner, Yamamoto, and Salvo. Appeal No. 2006-2018, mailed March 22, 17
2007. 18
There is no argument that Brown fully describes limitations (a) 19
through (e). Limitation (f) is the subject of contention. Although limitation 20
(g) depends on limitation (f), the analysis would be essentially similar. 21
The limitation most comparable to current limitation (f) in claim 1 in 22
the earlier appeal was “comparing an amount of raw materials sold to a store 23
and the predicted amount of raw materials for the given level of sales of 24
goods, to thereby provide an indication of a level of discrepancy.” After 25
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Application 09/815,731

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amending the claims, the Examiner retains Hafner, but now applies Brown 1
and Myrick in place of Yamamoto and Salvo. 2
We are not persuaded by the Appellants’ argument that (1) Brown 3
fails to describe limitation (f) of computing a variance and (2) Myrick fails 4
to describe following a recipe. Appeal Br. 12-14. Appellants respond to the 5
rejection by attacking the references separately, even though the rejection is 6
based on the combined teachings of the references. Nonobviousness cannot 7
be established by attacking the references individually when the rejection is 8
predicated upon a combination of prior art disclosures. See In re Merck & 9
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). 10
As to whether either reference describes or otherwise shows to be 11
predictable limitation (f), the Examiner found “Myrick was used to teach the 12
well known concept of calculating a variance, or a product loss, based on an 13
amount that should have been used.” Ans. 10. We agree, as Myrick 14
describes computing just such a variance from losses from various causes. 15
Myrick describes how SIR does so from what should have been sold (sales) 16
and what was used (purchases). 17
Limitation (f) does not specify or otherwise narrow the calculation 18
that is performed, but only indicates that sales, measured usage, and 19
purchases are taken into account. SIR uses all three of these inputs in 20
computing variances. SIR even describes the benefits from doing so as 21
identifying actual losses that can be investigated for amelioration, thus 22
providing the motivation for applying inventory reconciliation to Brown. 23
CONCLUSIONS OF LAW 24
The rejection of claims 1, 3-6, 8-11, and 13-15 under 35 U.S.C. § 25
103(a) as unpatentable over Brown, Hafner, and Myrick is proper. 26
Appeal 2011-013120
Application 09/815,731

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DECISION 1
The rejection of claims 1, 3-6, 8-11, and 13-15 is affirmed. 2
No time period for taking any subsequent action in connection with 3
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 4
§ 1.136(a)(1)(iv) (2011). 5
AFFIRMED 6
7
8
hh 9