Ex Parte Malitski

Board of Patent Appeals and Interferences

Feb 1, 2012

11212317 (B.P.A.I. Feb. 1, 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.
11/212,317 08/25/2005 Konstantin N. Malitski 6741P067 7357
45062 7590 02/02/2012
SAP/BSTZ
BLAKELY SOKOLOFF TAYLOR & ZAFMAN LLP
1279 OAKMEAD PARKWAY
SUNNYVALE, CA 94085-4040
EXAMINER
LEVINE, ADAM L
ART UNIT PAPER NUMBER
3625
MAIL DATE DELIVERY MODE
02/02/2012 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
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KONSTANTIN N. MALITSKI
____________

Appeal 2010-011500
Application 11/212,317
Technology Center 3600
____________

Before: HUBERT C. LORIN, BIBHU R. MOHANTY, and
MICHAEL W. KIM, Administrative Patent Judges.

KIM, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-011500
Application 11/212,317

2
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 1-9 and 11-19. We
have jurisdiction to review the case under 35 U.S.C. §§ 134 and 6 (2002).
The claimed invention is directed to models for shipments used in a
transportation planning vehicle scheduling system (Spec. 1). Claim 1,
reproduced below, is further illustrative of the claimed subject matter.
1. A computer implemented method comprising:
creating in a database a data structure for shipment
documents corresponding to orders for goods, the database
stored in a persistent memory module;
receiving a first order for goods document;
populating the data structure with a shipment document
independent of, but corresponding to the first order for goods
document; and
defining a link in the data structure to the first order for
goods document, the operation of defining the link performed
by a processor.

Claims 1-9 and 11-19 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Arunapuram (US Pub. No. 2002/0019759 A1, pub. Feb. 14,
2002).
We AFFIRM-IN-PART.

ISSUES
Did the Examiner err in asserting Arunapuram anticipates independent
claim 11? The issue turns on whether the Air Bill number in Arunapuram
corresponds to “defining a link in the data structure to the first order for
goods document,” as recited in independent claim 1.

1 We choose independent claim 1 as representative of claims 1, 5-9, 11, 13,
14, 18, and 19. See 37 C.F.R. § 41.37(c)(1)(vii).
Appeal 2010-011500
Application 11/212,317

3
Did the Examiner err in asserting Arunapuram anticipates dependent
claim 22? The issue turns on whether Arunapuram discloses a “shipment
identifier,” as recited in dependent claim 2.
Did the Examiner err in asserting Arunapuram anticipates dependent
claim 33? The issue turns on whether the freight payment module of
Arunapuram corresponds to a “scheduling engine,” as recited in dependent
claim 3.
Did the Examiner err in asserting Arunapuram anticipates dependent
claim 44? The issue turns on whether Arunapuram discloses “defining a
loading activity; defining a transport activity; and defining an unloading
activity,” as recited in dependent claim 4.

FINDINGS OF FACT
Arunapuram
FF1. Arunapuram discloses transportation planning managers
tracking the status of goods in transport in real time. Parcel and express
carriers assign a unique parcel identification, known as an Air Bill number,
to each delivery. This unique designation for each parcel is done by
providing two-part forms to the transportation planning managers, each
including a unique, pre-printed bar code corresponding to the Air Bill
number. One part of a form is attached to the parcel, while the

2 We choose dependent claim 2 as representative of claims 2 and 15. See 37
C.F.R. § 41.37(c)(1)(vii).
3 We choose dependent claim 3 as representative of claims 3 and 16. See 37
C.F.R. § 41.37(c)(1)(vii).
4 We choose dependent claim 4 as representative of claims 4, 12, and 17.
See 37 C.F.R. § 41.37(c)(1)(vii).
Appeal 2010-011500
Application 11/212,317

4
transportation planning managers retain the other part of the form. The
parcel identification barcode on the parcel is then scanned at each stage of
delivery to track the progress for the parcel. The barcode scanner
communicates with a host computer to transmit the parcel ID to a host
computer. The parcel ID and its location information are then transmitted by
the host computer to one or more web servers, each including a database for
storing a record of the parcel ID’s scanned at each location. The
transportation planning managers, by running a web browser, may link
through the Internet to one of the service provider web servers, and thus the
parcel status database table, by specifying a URL. The URL usually points
to an HTML file that is transmitted to the transportation planning managers
who are then prompted to enter the unique parcel ID. The parcel ID is
transmitted to the service provider web server and used as search criteria by
the service provider, which returns the current location of the parcel for
display on the transportation planning managers’ web browser (para.
[0007]).
FF2. The re-rating sub-step recalculates the cost of freight
movements once the order records have been successfully loaded into the FP
module’s FP database 502. The FP module's re-rate sub-process examines
variables such as carrier, rates, weight, miles traveled, and accessorial
charges and comes up with a cost (virtually identical in manner to that
performed by the PS module and described above with respect to sub-step
704 of Figure 7). The FP module could be designed to either utilize the data
and logic resident in the PS module to perform this calculation or could
alternatively essentially duplicate necessary the data and logic within its own
database and logic. While the estimated cost calculated by the PS module
Appeal 2010-011500
Application 11/212,317

5
when compiling an optimal transportation plan is typically passed to the FP
module from the EX module (after the associated freight movement is
executed), the FP module recalculates the expected shipment cost (para.
[0118]).
FF3. Arunapuram discloses keeping track of parcel status at each
stage of delivery, which includes pickup, delivery, transport, loading, and
unloading (paras. [0007], [0055], [0059], [0072]).

ANALYSIS
Independent Claim 1
We are not persuaded the Examiner erred in asserting that
independent claim 1 is anticipated by Arunapuram (App. Br. 8-9; Reply Br.
2-4). As applied to independent claim 1, Arunapuram discloses an Air Bill
number (link) entered into one or more web server databases (data
structures) that references a two-part form (first order for goods document)
including the Air Bill number, one part of which is attached to the parcel,
while the transportation planning managers retains the other part (FF1).
Appellant asserts that “data structure must be separate from the first order
for goods document” (App. Br. 9-10). Arunapuram’s two-part form is
separate from the one or more web server databases (FF1). Moreover, the
various shipping and order documents in Arunapuram are spread across
multiple web server databases (FF1).
Appellant asserts that Arunapuram does not disclose an order for
goods document because “the transportation planning manager is [un]aware
of the contents of parcels or their possible association with orders for goods
documents,” and that “reference or association to an order for goods
Appeal 2010-011500
Application 11/212,317

6
document is not necessarily present in the paper copies along with the
unique identifiers” (Reply Br. 2-4). However, the two-part form, and
associated counterpart information stored in the one or more web server
databases, does necessarily contain some information about the parcels,
whether or not they include the contents of the parcels. Thus, they are
“order for goods document[s]” under a broadest reasonable construction.
See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
(“[d]uring examination [of a patent application, a pending claim is] given
[the] broadest reasonable [construction] consistent with the specification”)
(internal citation and quotations omitted). While Appellant has perhaps
envisioned an “order for goods document” containing very specific types of
information, such aspects are not set forth in the claims. See CollegeNet,
Inc. v. ApplyYourself, Inc., 418 F.3d 1225, 1231 (Fed. Cir. 2005) (while the
specification can be examined for proper context of a claim term, limitations
from the specification will not be imported into the claims).

Dependent Claim 2
We are persuaded the Examiner erred in asserting that dependent
claim 2 is anticipated by Arunapuram (App. Br. 11-12; Reply Br. 4-5).
Dependent claim 2 recites a “shipment identifier.” While Arunapuram does
disclose an Air Bill number, that Air Bill number already corresponds to the
link recited in independent claim 1. See Texas Instr., Inc. v. United States
Int'l Trade Comm'n, 988 F.2d 1165, 1171 (Fed. Cir. 1993) (claim language
cannot be mere surplusage. An express limitation cannot be read out of the
claim); Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1563 (Fed. Cir.
1991) (two distinct claim elements should each be given full effect).
Appeal 2010-011500
Application 11/212,317

7
Dependent Claim 3
We are not persuaded the Examiner erred in asserting that dependent
claim 3 is anticipated by Arunapuram (App. Br. 13-14; Reply Br. 6-7).
Appellant asserts that the freight payment module of Arunapuram is not a
“scheduling engine,” because it does not “decide[] how to commit resources
between a variety of possible tasks.” Even if we were to accept Appellant’s
definition, we agree with the Examiner that the freight payment module
allocating invoiced charges to shipments meets Appellant’s definition (FF2)
(Exam’r’s Ans. 8-9). While Appellant attempts to make a distinction
between a resource and a liability, such a fine distinction must be set forth in
the claims. See CollegeNet, Inc. v. ApplyYourself, Inc., 418 F.3d at 1231.

Dependent Claim 4
We are not persuaded the Examiner erred in asserting that dependent
claim 4 is anticipated by Arunapuram (App. Br. 14-16; Reply Br. 7-8).
Arunapuram discloses “defining a loading activity; defining a transport
activity; and defining an unloading activity,” as recited in dependent claim 4
(FF3).

DECISION
The decision of the Examiner to reject claim 2 is REVERSED.
The decision of the Examiner to reject claims 1, 3-9 and 11-19 is
AFFIRMED.

Appeal 2010-011500
Application 11/212,317

8
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART

hh