Ex Parte Walden

Patent Trial and Appeal Board

Sep 30, 2016

12772019 (P.T.A.B. Sep. 30, 2016)

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.
12/772,019 04/30/2010 Jim Murray Walden WA82-001 2940
21567 7590 09/30/2016
Wells St. John P.S.
601 W. Main Avenue
Suite 600
Spokane, WA 99201
EXAMINER
GEORGALAS, ANNE MARIE
ART UNIT PAPER NUMBER
3625
MAIL DATE DELIVERY MODE
09/30/2016 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JIM MURRAY WALDEN
__________

Appeal 2014-000965
Application 12/772,0191
Technology Center 3600
____________

Before HUBERT C. LORIN, BRUCE T. WIEDER, and
CYNTHIA L. MURPHY, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Jim Murray Walden (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s Final rejection of claims 1–4, 6, 8–11, 13–16, 19,
20, and 22–29. We have jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

1 The Appellant identifies Carousel 6, LLC as the real party in interest.
App. Br. 4.
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THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A perishable medical product management system comprising:
a communications interface;
storage circuitry configured to store information regarding a
plurality of perishable medical products including information
regarding useful lives of the perishable medical products; and
processing circuitry coupled with the communications interface
and storage circuitry, and wherein the processing circuitry is
configured to monitor remaining amounts of time of the useful lives
of the perishable medical products, to detect one of the perishable
medical products approaching the end of its useful life as a result of
the monitoring, and to control the communications interface to output
a communication which indicates that the one perishable medical
product is approaching the end of its useful life as a result of the
detection of the one perishable medical product approaching the end
of its useful life.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:

Ogasawara
White
Elkins, II et al.
(Elkins”)

US 6,327,576 B1
US 7,237,713 B2
US 7,720,708 B1

Dec. 4, 2001
July 3, 2007
May 18, 2010

The following rejections are before us for review:
1. Claim 23 is rejected under 35 U.S.C. §112, first paragraph, as failing
to comply with the written description requirement.
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2. Claims 1, 2, 6, 9–11, and 15 are rejected under 35 U.S.C. §103(a) as
being unpatentable over Ogasawara.
3. Claims 3, 4, 8, 13, 14, and 24–27 are rejected under 35 U.S.C. §103(a)
as being unpatentable over Ogasawara and Elkins.
4. Claims 16, 19, 20, and 28 are rejected under 35 U.S.C. §103(a) as
being unpatentable over Ogasawara and Elkins.
5. Claim 22 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Ogasawara and White.
6. Claim 23 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Ogasawara, White, and Elkins.
7. Claim 29 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Ogasawara, Elkins, and White.

ISSUES
Did the Examiner err in rejecting claim 23 under 35 U.S.C. §112, first
paragraph, as failing to comply with the written description requirement?
Did the Examiner err in rejecting claims 1, 2, 6, 9–11, and 15 under
35 U.S.C. §103(a) as being unpatentable over Ogasawara?
Did the Examiner err in rejecting claims 3, 4, 8, 13, 14, and 24–27
under 35 U.S.C. §103(a) as being unpatentable over Ogasawara and Elkins?
Did the Examiner err in rejecting claims 16, 19, 20, and 28 under 35
U.S.C. §103(a) as being unpatentable over Ogasawara and Elkins?
Did the Examiner err in rejecting claim 22 under 35 U.S.C. §103(a) as
being unpatentable over Ogasawara and White?
Did the Examiner err in rejecting claim 23 under 35 U.S.C. §103(a) as
being unpatentable over Ogasawara, White, and Elkins?
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Did the Examiner err in rejecting claim 29 under 35 U.S.C. §103(a) as
being unpatentable over Ogasawara, Elkins, and White?

FINDINGS OF FACT
We rely on the Examiner’s factual findings stated in the Answer.
Additional findings of fact may appear in the Analysis below.

ANALYSIS
The rejection of claim 23 under 35 U.S.C. §112, first paragraph, as failing
to comply with the written description requirement.
The Examiner finds that said claimed subject matter is not adequately
described in the Specification in such a way as to reasonably convey to one
skilled in the relevant art that the inventor at the time the application was
filed had possession of it. Ans. 2. We disagree for the reasons stated in the
Reply Brief (page 33). Paragraphs 0058-0062 disclose first and second
classes of possible parties for possible disposal of the products.
[0058] In one embodiment, a plurality of tiers may be defined and
different operations may be implemented for attempting to dispose of
products depending upon which tiers the products are associated with
at different moments in time. As discussed further below, a
perishable product may advance from a first tier to the last provided
tier as the perishable product gets closer to its respective expiration
date.
[0059] One example first tier may be provided which would specify
that the perishable products are only made available for resale or
transfer to a first class of other products consumption entities (e.g.,
permissible or specified entities which are associated with the entity
which currently owns the perishable product). . . .
[0060] A second tier could be defined where the owner entity of a
perishable product has an existing business relationship, for example,
a contractual relationship with other products consumption entities
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and which may be referred to as a second class of potential purchasers
of the perishable product. . . .
[0061 ] A third tier could also be provided where perishable products
are capable of transfer or resale to a third class of entities. . . .
[0062] These described different operations with assisting with the
disposal of products in different tiers are described for example
embodiments of the disclosure and other embodiments are possible.
In disclosing operations whereby different classes of entities to which
perishable products may be made available for resale, the Specification
provides adequate written descriptive support for what is claimed. The
Examiner viewed said disclosure strictly — as not “specif[ying] that the
second medical products consumption entity has not previously owned the
one perishable medical product.” Ans. 68 (emphasis added). But said
disclosure sets forth an example that otherwise provides an equivalent
description of what is claimed.
For the foregoing reasons, the rejection is not sustained.

The rejection of claims 1, 2, 6, 9–11, and 15 under 35 U.S.C. §103(a) as
being unpatentable over Ogasawara.
The rejection of claims 3, 4, 8, 13, 14, and 24-27 are rejected under 35
U.S.C. §103(a) as being unpatentable over Ogasawara and Elkins.
The rejection of claims 16, 19, 20, and 28 are rejected under 35 U.S.C.
§103(a) as being unpatentable over Ogasawara and Elkins.
The rejection of claim 22 is rejected under 35 U.S.C. §103(a) as being
unpatentable over Ogasawara and White.
The rejection of claim 23 is rejected under 35 U.S.C. §103(a) as being
unpatentable over Ogasawara, White, and Elkins.
The rejection of claim 29 is rejected under 35 U.S.C. §103(a) as being
unpatentable over Ogasawara, Elkins, and White.

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Claims 1–4, 6, 8–10, 22–27
These claims are argued at App. Br. 9–12.
The Appellant initially argued claims 1–4, 6, 8–10, and 22–27 as a
group. We select claim 1 as the representative claim for this group.
The dispute is over the claim phrase “as a result of ” in the claim
limitation “[circuitry] to control the communications interface to output a
communication which indicates that the one perishable medical product is
approaching the end of its useful life as a result of the detection of the one
perishable medical product approaching the end of its useful life” of
independent claim 1.
The Appellant interprets the phrase as limiting; that is, the
communications interface is “triggered” to output said communication upon
the circuitry detecting a perishable medical product is approaching the end
of its useful life. See App. Br. 10. Under the Appellant’s interpretation,
nothing can come between the detection and communication functions; in
effect, the circuitry produces an automatic response.
The Examiner construes the phrase more broadly — in that it covers
the interface outputting a communication as a consequence of detecting a
perishable medical product is approaching the end of its useful life. Final
Act. 12–13. It is sufficient, from the Examiner’s perspective, that the
circuitry detects a perishable medical product approaching the end of its
useful life and, based on that being detected, communicating an indication
that the one perishable medical product is approaching the end of its useful
life. Ans. 49–50.
There is no dispute that Ogasawara shows an interface that
communicates information on perishable products approaching the end of
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their useful life. See Fig. 7. There is also no dispute that Ogasawara
discloses the use of a touch screen as a means for displaying said
information on perishable products approaching the end of their useful life.
See Ogasawara col. 11, lines 23–27; see also id. col. 12, line 4, (which
describes a button on the touch screen). The question is whether the claim
limitation at issue precludes the use of said touch screen. In that regard, we
find the Examiner has the better argument.
The customary and ordinary meaning of “result” is “to happen or
issue as a consequence or effect”. See Webster’s New World Dictionary
1145 (3rd Ed. 1988.)(Entry 1) for “result.”). We do not see and the
Appellant does not directed us to a more specific meaning in the
Specification. No evidence has been submitted in support of limiting the
claim phrase to cover circuitry automatically triggering a communications
interface and in doing precluding, for example, using a touch screen to
display perishable products approaching the end of its useful life. We agree
with the Examiner that, as reasonably broadly construed, the claim limitation
“[circuitry] to control the communications interface to output a
communication which indicates that the one perishable medical product is
approaching the end of its useful life as a result of the detection of the one
perishable medical product approaching the end of its useful life” of
independent claim 1 covers what Ogasawara discloses; that is, as a
consequence of detecting a perishable product approaching the end of its
useful life, an indication that said perishable medical product is approaching
the end of its useful life is output. As reasonably broadly construed, claim 1
does not preclude the further use of a touch screen to display said output.
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Accordingly, the argument that the communications interface is
“triggered” to output said communication upon the circuitry detecting a
perishable medical product is approaching the end of its useful life (see App.
Br. 10) as a ground for distinguishing the claimed subject matter over that
which Ogasawara discloses is not persuasive as to error in the rejection.
The Appellant also argues that
the Office clearly states on page 4 that the list is the communication.
However, claim 1 recites that the processing circuitry is configured to
control the communications interface to output the communication.
The present application clearly distinguishes a communications
interface 22 from a user interface 28 in Fig. 2.
App. Br. 10. The argument is not clearly understood. The Examiner is
simply saying that Ogasawara communicates information about perishable
products approaching the end of their useful life. That appears to be plainly
evident. Figure 7 shows said communicated information displayed on a
screen. Otherwise, the information is processed via a typical computer
system (see Ogasawara col. 2, lines 11–35). In that regard, the Appellant,
too, appears to employ a typical computer system. See Specification para.
16. As for the “communications interface” being different from a “user
interface”, the Specification defines “communications interface” as covering
such common devices as “a network interface card (NIC), serial or parallel
connection, USB port, Firewire interface, flash memory interface, or any
other suitable arrangement for implementing communications with respect
to computing system 20.” Spec. para. 31. We are confident that one of
ordinary skill in the art reading Ogasawara would understand that the typical
computer system it employs includes, for example, serial or parallel
connection. Accordingly, this argument is also not persuasive as to error in
the rejection.
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There being no other arguments, the rejection of claim 1 is sustained
for the foregoing reasons. The rejections of claims 2 and 6, which stand or
fall with claim 1, are also sustained. See 37 C.F.R. § 41.37(c)(1)(vii) (2007).
Claims 3, 4, 8–10, and 22–27 are further discussed below with respect to
additional arguments made to these claims.

Claims 11, 13, 14, and 15
These claims are argued at Appeal Brief 12–13.
The Appellant initially argued claims 11, 13, 14, and 15 as a group.
We select claim 11 as the representative claim for this group.
The arguments challenging the rejection of these claims appear to be
similar to those challenging claim 1. For example, the Appellant argues
that:
The Office relies upon the teachings of Ogasawara of the displayed
list of near expired items as teaching the claimed limitations of
communicating an indication. However, Ogasawara teaches in col.
12, lines 45-60 that the list is displayed as a result of a user
depressing the LIST key 82 which fails to teach or suggest the
claimed combination of limitations reciting communicating an
indication that the one perishable medical product is approaching an
end of its useful life as a result of the detecting one of the perishable
medical products approaching one of the expiration dates.
App. Br. 12. We have already analyzed such an argument and found it
unpersuasive as to error in the rejection. The other arguments are similarly
unpersuasive. Accordingly, for the reasons already discussed, the arguments
challenging the rejection of claim 11 are similarly unpersuasive.
We note that the argument over the “communications interface” being
different from a “user interface” in challenging the rejection of claim 1 is not
repeated here in challenging claim 11. This is so because the subject matter
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here claimed is much broader in scope; that is, the device employed is
nothing more than “circuitry.”
The rejection of claim 11 is sustained for the foregoing reasons. The
rejections of claims 13 and 15, which stand or fall with claim 11, are also
sustained. See 37 C.F.R. § 41.37(c)(1)(vii) (2007). Claim 14 is further
discussed below with respect to additional arguments made to the claim.

Claims 16, 19, 20, 28, and 29
These claims are argued at App. Br. 13-18.
The Appellant initially argued claims 16, 19, 20, 28, and 29 as a
group. We select claim 16 as the representative claim for this group.
Some of the arguments challenging the rejection of claim 16 appear to
be similar as those challenging claim 1. For example, the Appellant argues
that
The displaying of the list of near expired items as a result of the
user depressing the LIST key 82 in Ogasawara fails to teach or
suggest the claimed combination of limitations reciting as a result of
the detecting perishable medical product approaching an expiration
date, generating the communication.
App. Br. 13–14. We have already analyzed such an argument and found it
unpersuasive as to error in the rejection. Accordingly, for the reasons
already discussed, said argument challenging the rejection of claim 16 is
similarly unpersuasive.
The other arguments are directed to the claim 16 limitations:
as a result of the detecting, generating a communication
indicating that the perishable medical product is available for
acquisition; and
after the generating, receiving a response indicating a desire of
a different entity to acquire the perishable medical product.
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App. Br. 42, Claim App’x.
The Examiner found said subject matter would have been obvious
over Ogasawara in light of Elkins. See Final Act. 46.
The Appellant challenges the rejection on various grounds: (a) Elkins
does not show indicating that the perishable medical product is available for
acquisition (App. Br. 14); (b) that the claim is not merely a combination of
old elements (App. Br. 15); (c) a convincing line of reasoning based on
science or legal precedent has not been presented (App. Br. 16); and (d)
Ogasawara is directed towards monitoring refrigerator contents while Elkins
is directed towards commercial arrangements for sellers which offer refunds
and thus are nonanalogous.
We are not persuaded by these arguments as to error in the rejection
because they go to patentably inconsequential subject matter.
The limitations at issue require two steps — generating a
communication and subsequently receiving a response. For the reasons
given by the Examiner, we find that the prior art discloses said steps per se.
That does not appear to be in dispute. In fact, we would submit that
generating a communication and subsequently receiving a response are
notoriously well known activities.
The dispute is over the type of information being generated and
received. That is, claim 16 requires “generating a communication indicating
that the perishable medical product is available for acquisition” and “after
the generating, receiving a response indicating a desire of a different entity
to acquire the perishable medical product.” (Emphasis added). In that
regard, the structural difference between the computer system disclosed in
the cited references and the claimed “circuitry” is not apparent. If there is a
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difference it would appear to be in the type of information that is being
processed. For the claimed “circuitry,” the information being generated and
received “indicat[e] that the perishable medical product is available for
acquisition” and “indicat[e] a desire of a different entity to acquire the
perishable medical product,” respectively. There is insufficient evidence
that the “circuitry” is functionally affected by generating and receiving
information of that type rather than some other type. It is thus reasonable to
characterize the type of information being processed by the “circuitry” as
printed matter. Given that printed matter is not given patentable weight, the
“indicati[ons] that the perishable medical product is available for
acquisition” and “a desire of a different entity to acquire the perishable
medical product” claim limitations — as a distinction between the
Appellant’s “circuitry” and that of the computer systems of the cited
references — are not patentably consequential. They amount to
nonfunctional descriptive material. “[N]on-functional descriptive material,
being useful and intelligible only to the human mind, is given no patentable
weight.” Ex parte Graf, Appeal 2012-003941, 2013 WL 3873066, at *4
(PTAB July 23, 2013) (non-precedential), aff’d, In re Graf, 585 F. App’x.
1012 (Fed. Cir. 2014) (non-precedential); cf. In re DiStefano, 808 F.3d 845
(Fed. Cir. 2015); as explained in In re Xiao, 462 F.App’x. 947, 950–52 (Fed.
Cir. 2011) (non-precedential):
[T]he Board did not create a new “mental distinctions” rule in
denying patentable weight. . . . On the contrary, the Board simply
expressed the above-described functional relationship standard
in an alternative formulation—consistent with our precedents—
when it concluded that any given position label’s function . . . is
a distinction “discernable only to the human mind.” Board
Decision at 6; see In re Lowry, 32 F.3d 1579, 1583 (Fed. Cir.
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1994) (describing printed matter as “useful and intelligible only
to the human mind”) (quoting In re Bernhart, 417 F.2d 1395,
1399 (CCPA 1969)).
“The rationale behind this line of cases is preventing the indefinite patenting
of known products by the simple inclusion of novel, yet functionally
unrelated limitations.” King Pharms., Inc. v. Eon Labs, Inc., 616 F.3d 1267,
1279 (Fed. Cir. 2010).
For the foregoing reasons, the rejection of claim 16 is sustained.
Claims 19, 20, 28, and 29 are further discussed below with respect to
additional arguments made to these claims.

Claim 22
The claims is argued at App. Br. 18–20.
We agree that Ogasawara does not show “the processing circuitry is
configured to control the communications interface to output the
communication automatically as a result of the detection and in the absence
of any user input which instructs the outputting of the communication” as
these claims require. Reply Br. 11. As the Appellant points out
Ogasawara explicitly teaches the opposite in col. 12, lines 45-60 by
explicitly disclosing that a purchaser reviews the contents of the list
by depressing the LIST key 82. Accordingly, Ogasawara clearly
teaches that the list is displayed as a result of the depression of a
button bv the user. Appellants respectfully assert that this explicit
teachings of Ogasawara disclosing user interaction to display the list
teaches away from the combination/modification of Ogasawara per
the teachings of White proposed by the Office to support the rejection
of the positively-claimed limitations of outputting the communication
automatically as a result of the detection and in the absence of any
user input which instructs the outputting of the communication.
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App. Br. 18–19. This is not in dispute. The Examiner reached the same
conclusion, relying on White instead. See Final Act. 43, 44. The Appellant does
not provide a substantive argument against White. The only argument being made
is that Ogasawara teaches away from what is claimed. We are unpersuaded by that
argument. Nothing in Ogasawara’s disclosure of pressing a button would lead one
away from not doing so, especially given that rendering automatic by computer
that which is done by hand per se would have been obvious to one of ordinary skill
in the art. See In re Rundell, 48 F.2d 958 (Fed. Cir. 1932) and Leapfrog
Enterprises Inc. v. Fisher-Price Inc., 485 F.3d 1157 (Fed. Cir. 2007).
The rejection of claim 22 is sustained.

Claim 3, 4, 24, and 25
The Appellant argues that the claim limitation “the processing
circuitry is configured to detect the one perishable medical product
triggering a plurality of the thresholds, and to initiate different operations
with respect to attempting to dispose of the one perishable medical product
as a result of the triggering of respective ones of the different thresholds”
would not have been obvious in view of Elkins as the Examiner concluded.
See Final Act. 27. According to the Appellant, although Elkins discloses
triggering certain actions, all the actions are types of notifications and
therefore the same operation and not “different” operations as claim 3
requires. App. Br. 21.
We find there is merit to the Appellant’s argument. The claim term
“operation” ordinarily means “a process or action that is part of a series in
some work.” See Webster’s New World Dictionary 949 (3rd Ed. 1988.)
(Entry 3, for “operation.”). While Elkins discloses triggering notifications
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they differ in the type of information they communicate. They do not appear
to differ in the action that is part of a series in accomplishing the act of
notification.
Accordingly, we will not sustain the rejection of claim 3. Since
claims 4, 24, and 25 depend from claim 3, their rejections are also not
sustained.

Claim 8
We will sustain the rejection of claim 8. As we have already stated,
the cited prior art necessarily discloses a “communications interface” to
output a communication. The issue is whether the cited prior art discloses a
communication “comprising an indication that the one perishable medical
product is available for resale from the medical products consumptions
entity” (claim 8). The Appellant argues that this is not disclosed. See App.
Br. 23–24. But the type of information being communicated would not
appear to structurally affect a “communications interface.” If there is a
difference between the claimed interface and that of the cited prior art it
would appear to be in the type of information that is being communicated.
In that regard, the type of information that is being communicated is printed
matter and as such not given patentable weight.

Claim 9
We will sustain the rejection of claim 9 for reasons similar to those in
sustaining the rejection of claim 8. Claim 9 calls for the communication “as
an alarm.” This is a type of information that as a distinguishing feature over
the cited prior art is not given patentable weight.
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Claim 10
The Appellant’s arguments with respect to the subject matter of claim
10 are not persuasive as to error in the rejection. We agree with the
Examiner’s findings of facts (Final Act. 18) that all the features of the
claimed system, including “a server which includes the communications
interface, the storage circuitry and the processing circuitry, and wherein the
server is external of [entities],” are disclosed in the cited prior art. The
arguments are unpersuasive.

Claim 14
We will sustain the rejection of claim 14 for reasons similar to those
in sustaining the rejection of claim 8. Claim 14 calls for the communication
to be “[an] indication comprising an offer to resell the one perishable
medical product to a second medical products consumption entity.” This is a
type of information that as a distinguishing feature over the cited prior art is
not given patentable weight.

Claims 19 and 20
We will sustain the rejection of claims 19 and 20 for reasons similar
to those in sustaining the rejection of claim 8. Claim 19 calls for
“information regarding the perishable medical product and the expiration
date from the medical products consumption entity” and claim 20 calls for
communicating “[a] response to the medical products consumption entity.”
These are types of information that as a distinguishing features over the cited
prior art are not given patentable weight.
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Claim 23
We will sustain the rejection of claim 23 for reasons similar to those
in sustaining the rejection of claim 8. Claim 23 calls for outputting “[a]
communication to a second medical products consumption entity which has
not previously owned the one perishable medical product.” This is a type of
information that as a distinguishing feature over the cited prior art is not
given patentable weight.

Claim 26
We will sustain the rejection. The argument is that the cited prior art
does not show “one perishable medical product remains within the inventory
of the medical products consumption entity during the outputting” (claim
26) of certain information. App. Br. 32. However, Figure 7 appears to show
exactly that. Figure 7 shows remaining products for consumption along with
an output of information.

Claim 27
The Appellant argues that “[c]laim 27 recites that the processing
circuitry is configured to control the communications interface to output the
communication to an entity other than the medical products consumption
entity” and that this is not shown in Figure 7 of Ogsawara. App. Br. 32–33,
emphasis omitted. However, we agree with the Examiner’s assessment that
the destination for the type of information that is claimed (i.e., “[an]
indication that the one perishable medical product is available for resale”
(claim 26)) does not result in a structural difference between the claimed
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invention and the prior art. Final Act. 43. We agree that “Ogasawara is
capable of outputting communications to any party with access to the
inventory system.” Final Act. 44. To whom or to what the information is
destined does not amount to patentably significant subject matter. At best, it
characterizes an intended use for the type of information recited in the
claims. The rejection is sustained because the argument is unpersuasive as
to error in the rejection for the foregoing reasons.

Claim 28
We will sustain the rejection of claim 28 for reasons similar to those
in sustaining the rejection of claim 8. Claim 28 calls for outputting “[a]
communication, and wherein the receiving comprises receiving as a result of
the outputting the communication.” In receiving the information depicted in
Fig. 7 of Ogasawara, one necessarily receives that which was output as a
communication. Cf. In re Preda, 401 F.2d 825, 826 (CCPA 1968) (“[I]n
considering the disclosure of a reference, it is proper to take into account not
only specific teachings of the reference but also the inferences which one
skilled in the art would reasonably be expected to draw therefrom.”)

Claim 29
The Appellant argues that the cited prior art does not disclose
monitoring a plurality of perishable products as claimed. App. Br. 34. The
Appellant takes issue with White, which the Examiner cited, because “[it]
refer[s] to a single "transaction establishment.” App. Br. 34. However, the
mere duplication of known monitoring of a perishable product is not
patentably significant where, as here, there is insufficient evidence that the
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result is anything other than what one would expect, i.e., monitoring a
plurality of products. Cf. In re Harza, 274 F.2d 669, 671 (CCPA 1960) (“It
is well settled that the mere duplication of parts has no patentable
significance unless a new and unexpected result is produced, and we are of
the opinion that such is not the case here.”) The rejection is sustained
because the argument is unpersuasive as to error in the rejection for the
foregoing reasons.

CONCLUSIONS
The rejection of claim 23 under 35 U.S.C. §112, first paragraph, as
failing to comply with the written description requirement is reversed.
The rejection of claims 1, 2, 6, 9–11, and 15 under 35 U.S.C. §103(a)
as being unpatentable over Ogasawara is affirmed.
The rejection of claims 3, 4, 24 and 25 under 35 U.S.C. §103(a) as
being unpatentable over Ogasawara and Elkins is reversed.
The rejection of claims 8, 13, 14, 26 and 27 are rejected under
35 U.S.C. §103(a) as being unpatentable over Ogasawara and Elkins is
affirmed.
The rejection of claims 16, 19, 20, and 28 are rejected under
35 U.S.C. §103(a) as being unpatentable over Ogasawara and Elkins is
affirmed.
The rejection of claim 22 is rejected under 35 U.S.C. §103(a) as being
unpatentable over Ogasawara and White is affirmed.
The rejection of claim 23 is rejected under 35 U.S.C. §103(a) as being
unpatentable over Ogasawara, White, and Elkins is affirmed.
Appeal 2014-000965
Application 12/772,019

20
The rejection of claim 29 is rejected under 35 U.S.C. §103(a) as being
unpatentable over Ogasawara, Elkins, and White is affirmed.

DECISION
The decision of the Examiner to reject claims 1–4, 6, 8–11, 13–16, 19,
20 and 22–29 is affirmed-in-part.

AFFIRMED-IN-PART