Ex Parte Scheer

Board of Patent Appeals and Interferences

Nov 13, 2006

09867174 (B.P.A.I. Nov. 13, 2006)

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is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte ROBERT H. SCHEER
_____________

Appeal No. 2006-1854
Application No. 09/867,174
Technology Center 3600
______________

ON BRIEF
_______________

Before OWENS, NAPPI and FETTING, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134 of the final rejection of claims
11 through 20. Claims 1 through 10 have been canceled. For the reasons stated infra we
will not sustain the examiner’s rejection of claims 11 through 20.

Appeal No. 2006-1854
Application No. 09/867,174

THE INVENTION

The invention relates to supply chain management, specifically a method of
selecting a fulfillment plan for moving an item within a supply chain. See page 1 of
appellant’s specification. Claim 11 is representative of the invention and is reproduced
below:
11. A computer readable media having instructions executable by a computer
for use in selecting a fulfillment plan for moving an item within a supply chain
distributed over a plurality of geographic locations, the instructions performing
steps comprising:
receiving an order for an item;
in response to receipt of the order for the item constructing a plurality of
alternative fulfillment plans for moving the item from a sourcing point to each
of the plurality of geographic locations within the supply chain;
evaluating each of the constructed plurality of alternative fulfillment plans
against a predetermined criteria; and
selecting for implementation one of the constructed plurality of alternative
fulfillment plans that most closely meets the predetermined criteria, the selected
one of the plurality of alternative fulfillment plan being used to position the item
at one of the plurality of geographic locations within the supply chain thereby
making the item available for use in meeting the order.

THE REFERENCES

The references relied upon by the examiner are:

Dietrich 5,216,593 Jun. 01, 1993
Altendahl 6,571,213 May 27, 2003 (Dec. 30, 1999)
Landvater 6,609,101 Aug. 19, 2003 (Mar. 25, 2000)

2

Appeal No. 2006-1854
Application No. 09/867,174

THE REJECTION AT ISSUE

Claims 11, 12, and 14 through 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Altendahl in view of Landvater. Claim 13 stands rejected
under 35 U.S.C. § 103 as being unpatentable over Altendahl in view of Landvater and
Dietrich. Throughout the opinion we make reference to the briefs and the answer for the
respective details thereof.
OPINION
We have carefully considered the subject matter on appeal, the rejections
advanced by the examiner and the evidence of obviousness relied upon by the examiner
as support for the rejections. We have, likewise, reviewed and taken into consideration,
in reaching our decision, Appellant’s arguments set forth in the briefs along with the
examiner’s rationale in support of the rejections and arguments in rebuttal set forth in the
examiner’s answer.
With full consideration being given to the subject matter on appeal, the
examiner’s rejections and the arguments of appellant and the examiner, for the reasons
stated infra we will not sustain the examiner’s rejections of claims 11 through 20 under
35 U.S.C. § 103.
Appellant argues, on page 5 of the brief, that Altendahl teaches a system where a
single geographic destination for an item is required to be first established. As such,
appellant argues, on pages 5 and 6 of the brief, that Altendahl does not:
teach, or suggest at least the claimed elements of constructing a plurality of
alternative fulfillment plans for moving an item that is the subject of an order
from a sourcing point to each of plural geographic locations within the supply
chain, evaluating each of the constructed plurality of alternative fulfillment plans
against a predetermined criteria, and then selecting for implementation one of the
constructed plurality of alternative fulfillment plans that most closely meets the
predetermined criteria to thereby position the item that is the subject of the order
at one of the plural geographic locations within the supply chain to thereby make
the item available to meet the order. (emphasis original)

3

Appeal No. 2006-1854
Application No. 09/867,174

Further, on pages 6 and 7 of the brief, appellant argues that Landvater discloses a system
to forecast replenishment needs at specific locations, i.e., determine the quantity of items
to be shipped to a plurality of locations. On page 7 of the brief, appellant asserts that
Landvater “is simply silent as to any method for constructing or selecting a plan to move
the forecast amount of items at the forecast time to each of the retail stores.” As such,
appellant concludes that Landvater fails to suggest the desirability of constructing a
plurality of alternative fulfillment plans for each of a plurality if geographic locations
within the supply chain as claimed. Appellant asserts, on page 8 of the brief, that if
Altendahl and Landvater were combined, Landvater’s teaching would provide the
destinations for the packages to be shipped and Altendahl‘s teaching would provide a
system of selecting the route to the to the destinations. Appellant asserts, on page 9 of
the brief, that this would not be the claimed system “in which the geographic location in
which an item that is the subject of the order is to be positioned is not known until after
the instructions evaluate each of the construed alternative fulfillment plans for each of a
plurality of geographic locations within a supply chain against a predetermined criteria.”
(emphasis original).
The examiner’s response to appellant’s arguments is on pages 7 through 14 of the
answer. On pages 7 and 8 of the answer, the examiner finds that Altendahl teaches all of
the limitations of claim 11 “except that [a] plurality of geographical destinations are
considered instead of one.” (emphasis original) The examiner finds that Altendahl
suggests that fulfillment plans are constructed for plural parcels which could be destined
for different addresses. On pages 8 and 9 of the answer, the examiner finds that
Landvater teaches moving an item or items to replenish inventories in a plurality of stores
in a supply chain. Based upon these findings the examiner states, on page 9 of the
answer that:
4

Appeal No. 2006-1854
Application No. 09/867,174

the teachings of Landvater are applicable to the Altendahl's example of a business
company ordering computer systems on [sic: from] a seller because it would be
obvious to one of an ordinary skilled [sic.] in the art that a business company can
have several installations/stores at different geographical locations requiring [the]
same items and supplies so that they are ordered simultaneously for all the
branches to save cost of operation and get price advantage.

The examiner states, on page 12 of the answer, that the order or sequence of the steps in a
method is not a requirement unless the claim specially recites them as so. Further, on
page 14 of the answer, the examiner states:
In response to the applicant's argument that the references fail to show certain
features of applicant's invention, it is noted that the features upon which applicant
relies (i.e., the geographic location in which an item that is the subject of the
order is to be positioned is not known until after the instructions evaluate each
of the constructed alternative fulfillment plans for each of a plurality of
geographic locations within a supply chain against a predetermined criteria.)
are not recited in the rejected claim(s). (emphasis original)

We disagree with the examiner’s claim interpretation and consequently with the
examiner’s determination that the claims are obvious over the combination of Altendahl
and Landvater. We concur with the examiner that the claim does not directly recite “the
geographic location in which an item that is the subject of the order is to be positioned is
not known until after the instructions evaluate each of the constructed alternative
fulfillment plans for each of a plurality of geographic locations within a supply chain
against a predetermined criteria.” Nonetheless we find that the scope of the claim is
limited to such a system. Claim 11 recites:
in response to receipt of the order for the item constructing a plurality of
alternative fulfillment plans for moving the item from a sourcing point to each of
the plurality of geographic locations within the supply chain;
evaluating each of the constructed plurality of alternative fulfillment plans
against a predetermined criteria; and
selecting for implementation one of the constructed plurality of alternative
fulfillment plans that most closely meets the predetermined criteria.

5

Appeal No. 2006-1854
Application No. 09/867,174

We hold that the claim necessarily requires the steps to be performed in the order recited.
The alternative fulfillment plans are constructed in response to receipt of an order, the
evaluation of the fulfillment plans can not occur until after the fulfillment plans are
constructed and the selection of the fulfillment plans can not occur until they are
evaluated against the criteria. Further, claim 11 recites “the selected one of the plurality
of alternative fulfillment plan being used to position the item at one of the plurality of
geographic locations within the supply chain,” thus claim 11 recites a system that
determines the location for an ordered item to be moved to in response to evaluating and
selecting a plan to move the ordered item from a sourcing point to more then one
location. We do not find that, either Altendahl or Landvater teach or suggest such a
feature.
We find that Altendahl teaches a system which evaluates a plurality of methods of
shipping a package and selects the appropriate shipping method based upon a set of rules.
While Altendahl does teach that the rules may cover a plurality of locations (see for
example, figure 6 and discussion in column 12, lines 19 through 39), we do not find that
Altendahl teaches or suggests that in response to an order, more then one destination is
evaluated for the same order and a determination is made as to which destination the item
ordered is to be shipped. We find that Landvater teaches a system for forecasting a
retail store’s needs for items. See abstract. While Landvater does teach the items may be
shipped to different locations in the supply chain, we do not find that Landvater, in
response to an order, constructs alternative fulfillment plans to ship the ordered item to
different locations and then select the location based upon an evaluation of the fulfillment
plan. Thus, we do not find that the combination of Altendahl and Landvater teach or
suggest the invention as claimed in independent claim 11. Claims 12 and 14 through 20
depend upon claim 11. Accordingly, we will not sustain the examiner’s rejection of
claim 11, 12, 14 through 20 under 35 U.S.C. § 103 as being unpatentable over Altendahl
in view of Landvater.
6

Appeal No. 2006-1854
Application No. 09/867,174

The examiner rejected claim 13 under 35 U.S.C. § 103 as being unpatentable over
Altendahl in view of Landvater and Dietrich. Claim 13 depends upon claim 11. The
examiner has not asserted nor do we find that Dietrich teaches or suggests modifying
Altendahl or Landvater to construct alternative fulfillment plans to ship the ordered item
to different locations and then select the location based upon an evaluation of the
fulfillment plan. Accordingly, we will not sustain the examiner’s rejection of claim 13
for the reasons discussed supra with respect to claim 11.
Accordingly, we will not sustain the examiner’s rejection of claims 11 through
20, under 35 U.S.C. § 103. The decision of the examiner is reversed.

REVERSED

TERRY J. OWENS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
ROBERT E. NAPPI ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
ANTON W. FETTING )
Administrative Patent Judge )

REN/vsh
7

Appeal No. 2006-1854
Application No. 09/867,174

GREENBERG TRAURIG, LLP
77 WEST WACKER DRIVE
SUITE 2500
CHICAGO IL 60601-1732
8