Ex Parte Johnson, Jr.

Board of Patent Appeals and Interferences

Aug 27, 2002

09129088 (B.P.A.I. Aug. 27, 2002)

1
The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.
Paper No. 12

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte RALPH B. JOHNSON, JR.
_____________
Appeal No. 2001-0671
Application No. 09/129,088
______________
ON BRIEF
_______________
Before KRASS, LALL and BARRY, Administrative Patent Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of claims 1-8, all of the
pending claims.
The invention is directed to a computer programmed logistic system for planning
transport of a variety of commodities. The commodities undergo transit by a transport
Appeal No. 2001-0671
Application No. 09/129,088
2
means from a source to a delivery receiving location under control of the programmed
logistic system. Preselection of the commodity transit constraints is dependent on the
total number of transits and conditions at the source and receiving location at which
usage of the commodities occurs at a certain rate.
Representative independent claim 1 is reproduced as follows:
1. In combination with delivery of commodities from a source to a
receiving location at which usage of the commodities occurs at a certain
rate, a programmed logistic system for planning said delivery of the
commodities during said usage thereof, comprising:
transport means for sequential transit of unit quantities of said
commodities from the source to the receiving location;
means for preselecting constraints to be imposed on the transport
means dependent on conditions at the source and the receiving location,
including total number of the transits;
means for computing rate of delivery of the commodities at the
receiving location by the transport means under said constraints; and
means imposing scheduling on said transport means for minimizing
said total number of the transits to the receiving location at said rate of
delivery in excess of said certain rate of the usage to maintain a reserve
inventory of the commodities at said receiving location.
The examiner relies on the following references:
Schrader et al. (Schrader) 4,049,131 Sep. 20, 1977
Lu et al. (Lu) 5,450,317 Sep. 12, 1995
Lewis 5,615,711 Apr. 01, 1997
Masch 5,930,762 Jul. 27, 1999
(filed Sep. 24, 1996)
Appeal No. 2001-0671
Application No. 09/129,088
3
Claims 1-8 stand rejected under 35 U.S.C. § 103. As evidence of obviousness,
the examiner offers Lu and Masch with regard to independent claims 1 and 5, adding
Schrader with regrd to claims 2-4, 6 and 7. The examiner cites Lu, Masch and Lewis
with regard to claim 8.
Reference is made to the briefs and answer for the respective positions of
appellant and the examiner.
OPINION
We REVERSE.
It is the examiner’s position, with respect to the independent claims, that Lu
discloses the claimed subject matter but for an explicit showing of “preselecting
constraints . . . [and] rate of delivery of commodities . . .” [Paper No. 4-page 4]. The
examiner then turns to Masch, holding that the recitation therein, of “constraints” [e.g.,
column 14, line 9 and lines 20-21], both “predetermined” and “discretionary,” suggests
the claimed “preselecting constraints . . . [and] rate of delivery of commodities . . .” The
examiner then concludes that it would have been obvious to modify Lu with the
teachings of Masch because it “would have provided a means to ‘eliminate or reduce
outcomes falling outside the boundary limits . . . [i.e.,] limiting the risky outcomes”
[Paper No. 4-page 5].
Appeal No. 2001-0671
Application No. 09/129,088
4
It is our view that the examiner has not established a prima facie case of
obviousness with regard to the instant claimed subject matter.
Even assuming, arguendo, that the “constraints” disclosed by Masch could be
considered the preselected constraints of the instant claims, the “preselected
constraints” of the instant claimed invention is imposed on a transport means and it is
done so “dependent on conditions at the source and the receiving location.” We find no
indication in either Lu or Masch of imposing any constraints on a “transport” means and
wherein such imposition is “dependent on conditions at the source and the receiving
location.”
Moreover, we find nothing in the applied references suggesting usage of
commodities “at a certain rate” or a “means for computing rate of delivery of the
commodities at the receiving station,” as claimed.
The examiner says that it would have been obvious that Lu’s “dynamic
programming procedures . . . warehouse demand and customer demand matrices to
determine interim demand solutions” [answer, page 6, emphasis original] would have
been selected in accordance with “preselecting constraints” and “rate of delivery of
commodities” because “demand” would have been interpreted by skilled artisans as a
required “constraint.” Further, “dynamic programming procedures...” would have been
Appeal No. 2001-0671
Application No. 09/129,088
5
interpreted by skilled artisans as “preselecting” procedures required to determine
solutions and “dynamic programming model” would have been interpreted in context
with the “rate of delivery of commodities.” We find no reason for such “interpretations”
and the examiner has provided us with none. Accordingly, the examiner has provided
no convincing rationale for a finding of these specifically claimed limitations in the
applied references.
The examiner also indicates that Masch shows “production throughput” and that
this is interpreted “in context as ‘rate of delivery of commodities . . .’” [answer-page 7].
Again, we find no support for such an allegation. The recitation of “production
throughput” may just as well refer to a quantity, rather than to a rate or to a rate of
delivery of commodities. We find no clear suggestion in the applied references for the
“rate of delivery of commodities,” as claimed, and the examiner’s interpretation of the
term, “production throughput,” as referring to a rate of delivery of commodities is pure
speculation. A proper rejection under 35 U.S.C. § 103 may not be based on
speculation.
Since the examiner has provided no convincing support for the many allegations
of where the claimed elements are disclosed or suggested by the applied references,
Appeal No. 2001-0671
Application No. 09/129,088
6
no prima facie case of obviousness has been established. Accordingly, we will not
sustain the rejection of claims 1-8 under 35 U.S.C. § 103.
The examiner’s decision is reversed.
REVERSED
ERROL A. KRASS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
PARSHOTAM S. LALL ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
LANCE LEONARD BARRY )
Administrative Patent Judge )
eak/vsh
Appeal No. 2001-0671
Application No. 09/129,088
7
OFFICE OF COUNSEL CODE 004
NAVAL SURFACE WARFARE CENTER
CARDEROCK DIVISION
9500 MACARTHUR BOULEVARD
WEST BETHESDA, MD 20817-5700