Ex Parte LI et alDownload PDFPatent Trial and Appeal BoardNov 25, 201512637593 (P.T.A.B. Nov. 25, 2015) Copy Citation 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. 12/637,593 12/14/2009 Sheng Li 247-098USCON 3585 131475 7590 11/25/2015 Dilworth IP - SAP 2 Corporate Drive, Suite 206 Trumbull, CT 06611 EXAMINER STERRETT, JONATHAN G ART UNIT PAPER NUMBER 3623 MAIL DATE DELIVERY MODE 11/25/2015 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 SHENG LI, KARSTEN SCHIERHOLT, and RALF HEIMBURGER ___________ Appeal 2013–003374 Application 12/637,593 Technology Center 3600 ___________ Before ANTON W. FETTING, MICHAEL C. ASTORINO, and NINA L. MEDLOCK, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Sheng Li, Karsten Schierholt, and Ralf Heimburger (Appellants) seek review under 35 U.S.C. § 134 of a final rejection of claims 1–18, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed August 6, 2012) and Reply Brief (“Reply Br.,” filed January 3, 2013), and the Examiner’s Answer (“Ans.,” mailed November 7, 2012), and Final Rejection (“Final Rej.,” mailed March 5, 2012). Appeal 2013-003374 Application 12/637,593 2 The Appellants invented a way of forecasting demand for replacement parts of a product that has been discontinued or phased-out. Specification para. 2. An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below (bracketed matter and some paragraphing added). 1. A non–transitory machine readable medium having instructions stored therein which when executed cause a machine to perform a set of operations comprising: [1] retrieving data about a phased-out product from a storage system; [2] retrieving a group phase-out profile associated with the phased-out product the group phase-out profile generated by sorting a plurality of phased-out products into groups and aggregating a phase-out profile for each group member; and [3] forecasting demand for the phased-out product based on the group phase-out profile and retrieved data . The Examiner relies upon the following prior art: Li US 7,636,607 B2 Dec. 22, 2009 John R. Moore, Jr., “Forecasting and Scheduling for Past–Model Replacement Parts,” Management Science, Vol. 18, No. 4, Application Series, Part 1 (Dec. 1971), pp. B-200–B-213 Appeal 2013-003374 Application 12/637,593 3 Claims 1–18 stand rejected under obviousness type double patenting as unpatentable over claims 1–19 of Li. Claims 1–18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Moore and Official Notice. ISSUES The issues of obviousness turn primarily on whether Moore discloses or suggests the steps recited in claim 1. FACTS PERTINENT TO THE ISSUES The following enumerated Findings of Fact (FF) are believed to be supported by a preponderance of the evidence. Facts Related to the Prior Art Moore 01. Moore is directed to describing a forecasting technique for past model replacement parts. Moore B-200:Abstract. 02. Moore describes curve extrapolation and smoothing models of demand forecasting having been thwarted in many product areas by extreme volatility of demand and a lack of discernible sales patterns. The desirable features of “steady state” demand processes which permit a forecast to “catch up” and even compensate for erroneous forecasts made in earlier periods are not present in service part demand process. As a result, conventional forecasting techniques produce sales estimates so far in excess of Appeal 2013-003374 Application 12/637,593 4 actual demand that inventories larger than all-time requirements are built up and maintained throughout a substantial portion of the sales decay period. Only when demand actually vanishes is the extent of an obsolescence loss recognized. Moore B-202. 03. Moore describes using standard deviation for all products including phased out products in computing economic order quantities (EOQ) for stock replenishment. Moore B-205. 04. Moore describes having retrieved data for and analyzed 200 completed parts histories representing nearly every parts category, and the analysis resulted in a variety of sales decay patterns. Moore describes a transformation of sales data from an arithmetic scale to a logarithmic scale as producing interesting results. Moore B-205. 05. Moore describes the analysis of data for major engine and transmission parts, body panels, axles, springs and windshields. The nature of the parts suggests very expensive repairs which might be performed, if at all, with salvaged parts when the market value of the vehicle is low. Moore found an elliptical sales decay function with these parts. Moore B-205. 06. Moore describes the analysis of data for moderately priced essentials and several cosmetic items for higher priced vehicles, e.g., lamp assemblies, valves, connecting rods, speedometers, fuel and water pumps and chrome body trim. Moore found a parabolic sales decay function with these parts. Moore B-205. Appeal 2013-003374 Application 12/637,593 5 07. Moore describes the analysis of data for a wide range of general maintenance parts such as shock absorbers, brake cylinders, lines, and pads, valve lifters and a host of seals, gaskets, brackets and small fittings. Moore found a linear (exponential when the logarithmic transformation is accounted for) sales decay function with these parts. Moore B-205. 08. Moore describes every replacement part for which all-time requirements are to be estimated having actual sales data available for the re-indexed years. Moore describes searching for the decay function which best describes actual demand for the K - 1 years of sales decline as starting by fitting a particular curve and each point. This produces N - K ellipses from which the best fitting ellipse must be identified for comparison with the best fitting parabola and line. Moore B-207. 09. Moore describes the best fitting ellipse being identified by first calculating for each curve, the log of predicted sales. These can easily be transformed into estimated yearly sales which are then compared with actual sales in years 2, ··· , K and an error term developed. That ellipse of the N - K generated which produces the least estimation error is designated as the best fitting ellipse. This same process is repeated to determine the best fitting parabolic and linear decay functions. Finally, the single best fitting curve, i.e., the ellipse, parabola or line with the smallest error term, is selected and used to estimate future years’ sales as well as the year in which all demand will vanish. Id. Appeal 2013-003374 Application 12/637,593 6 ANALYSIS Claims 1–18 rejected under obviousness type double patenting We summarily affirm this rejection as Appellants do not contest it. Claims 1–18 rejected under 35 U.S.C. § 103(a) as unpatentable over Moore and Official Notice As to claim 1 limitation [2], the Specification suggests the limitation should be interpreted as reciting retrieving a group phase-out profile associated with the phased-out product, and that profile has been generated by sorting and aggregating as recited.2 See Spec. para. 25. . We are not persuaded by the Appellants’ argument that the phase-out profile is 1) an aggregation of phase-out profiles of group members and 2) must serve as the basis for the demand forecast for the phased-out product. This means that the demand of forecast for the phased-out product depends on the individual phase-out profiles of each member of the group. Inasmuch as what the Office has characterized as the “groups” (effectively high, medium and low cost replacement parts) are not aggregated in any manner they cannot satisfy the limitations of claim l. Rather a particular part is identified as falling into the high, medium or low cost part family and then has an elliptical, parabolic or linear decay function applied based on its own historical demand. Thus, the demand for windshields and the demand for transmission parts have no effect on each other’s respective forecast demand. Since these two products are explicitly in the same elliptical phase-out group this is 2 Appellants might consider inserting a comma after the phrase “associated with the phased-out product” to make this clear. Appeal 2013-003374 Application 12/637,593 7 fundamentally inconsistent with what Appellants have claimed. It is submitted that the utter lack of aggregation (there is no combination in any manner of the respective demand curves of group members) of what the Office has characterized as the individual phase-out profiles; there is no formation of a group phase-out profile as claimed. Moreover, there is absolutely no dependence in the forecast for one phase-out product group to another. App. Br. 9. Much of this argument pertains to the profile. The actual steps recited do not affect or depend on the profiles other than to retrieve and forecast a demand based on them. Claim 1 has three steps of retrieving data about a product, retrieving some profile data, and forecasting demand based on these two sets of data. It is uncontested that Moore does this much. Although the second step (i.e., limitation [2]) recites a limitation regarding how the profile was generated, such generation would have occurred prior to the start of the steps in the claim. Any such steps are outside the scope of the claim. The non-transitory medium of claim 1 does not recite instructions for generating the profile. The second step is merely that of retrieving the profile, which as a primitive computer operation, is independent of how the data were generated. The third step recites forecasting using the profile, but as no implementation is recited, the third step as recited is independent of how the profile was generated. As such, actual historical data for the first step and a profile with a constant multiplier used to perform a scalar multiplication of the historical data would be within the scope of the recited steps. Put another way, the recitation of how the profile is generated is aspirational rather than functional. As such the manner of generation is deserving of no patentable weight. See King Pharm., Inc, 616 F.3d at 1279) (“The rationale behind Appeal 2013-003374 Application 12/637,593 8 this line of cases is preventing the indefinite patenting of known products by the simple inclusion of novel, yet functionally unrelated limitations.”) But even granting patentable weight to the limitation, we find the limitation is drafted with sufficient breadth to encompass Moore within its scope. The Examiner found that Moore described grouping automotive parts into generic groups such as major engine and transmission parts, body panels, and similar categories. The Examiner found that Moore then found that after translating sales data onto a logarithmic scale, each such group in turn exhibited a sales curve that was geometrically elliptical, parabolic, or linear. As the claim does not recite or narrow the implementation of the recited profiles, the data Moore relied on to represent sales for each individual part, summaries by part, summaries by category, and summaries by geometric sales trait all fit within the scope of such a profile. Thus, the sorting of parts by part type and by larger category and then by geometric profile each is within the scope of sorting a plurality of phased out products into groups. As each of these summary levels is aggregated into the next larger such grouping, such aggregation is within the scope of aggregating a phase-out profile for each group member. Finally, fitting the data for a particular category onto one of the geometric curves requires regression which is also a form of aggregation. As to the contention that “the demand of forecast for the phased-out product depends on the individual phase-out profiles of each member of the group,” this is simply an inherent result of such aggregation. As to the contention that “there is no reasonable interpretation where forecasting demand for the phase-out product is based on the group phase-out profile Appeal 2013-003374 Application 12/637,593 9 (defined as the aggregation of phase-out profiles for each group member)” (App. Br. 9), this is not what is recited. Instead, the claim recites generating the group phase-out profile by sorting products into groups and aggregating a phase-out profile for each group member. Every individual product, product genus, and product category and even geometric description genus is a member of a group of phased-out products. Further, the limitation at issue does not recite or narrow how the generation results from aggregating a phase-out profile for each group member. In particular, the generation is not necessarily itself an aggregation function; the generation merely in some unspecified manner relies on some aggregation. The Examiner’s finding that curve fitting results from ordinary regression is within such a scope. As to separately argued claims 4 and 11, reciting retrieving a standard deviation value for the phased out product, the Examiner found that Moore described doing so for computing stock replenishment quantities. We are not persuaded by the Appellants’ argument that the claim requires retrieval of a standard deviate of a phase out profile. Claim 4 recites retrieving a standard deviation for a product, not of a profile. Clearly retrieving a standard deviation for the purpose of stock replenishment is within the scope of being for the replenished phased out product. As to separately argued claim 9, reciting generating the profile if a minimum number of data requirements are met, the Examiner found that Moore described setting a minimum of 1. Ans. 8–9. We are not persuaded by the Appellants’ argument that the Examiner failed to make a finding. Appeal 2013-003374 Application 12/637,593 10 We are persuaded by the Appellants’ argument that the Examiner made no findings as to claims 12, 13, and 15–18. Thus, the Examiner has not presented a prima facie case as to these claims. The remaining claims are argued on the basis of claim 1. CONCLUSIONS OF LAW The rejection of claims 1–18 under obviousness type double patenting is proper. The rejection of claims 1–11 and 14 under 35 U.S.C. § 103(a) as unpatentable over Moore and Official Notice is proper. The rejection of claims 12, 13, and 15–18 under 35 U.S.C. § 103(a) as unpatentable over Moore and Official Notice is improper. DECISION The rejection of claims 1–18 is affirmed. 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) (2011). AFFIRMED tkl Copy with citationCopy as parenthetical citation