Ex Parte Malitski

Patent Trial and Appeal Board

Nov 12, 2013

11212315 (P.T.A.B. Nov. 12, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/212,315 08/25/2005 Konstantin N. Malitski 6741P066 7367
45062 7590 11/12/2013
SAP/BSTZ
BLAKELY SOKOLOFF TAYLOR & ZAFMAN
1279 Oakmead Parkway
Sunnyvale, CA 94085-4040
EXAMINER
BOSWELL, BETH V
ART UNIT PAPER NUMBER
3623
MAIL DATE DELIVERY MODE
11/12/2013 PAPERPAPER
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 1
___________ 2
3
BEFORE THE PATENT TRIAL AND APPEAL BOARD 4
___________ 5
6
Ex parte KONSTANTIN N. MALITSKI 7
___________ 8
9
Appeal 2011-007937 10
Application 11/212,315 11
Technology Center 3600 12
___________ 13
14
15
Before ANTON W. FETTING, MEREDITH C. PETRAVICK, and 16
MICHAEL W. KIM, Administrative Patent Judges. 17
FETTING, Administrative Patent Judge. 18
DECISION ON APPEAL 19
20
Appeal 2011-007937
Application 11/212,315

2
STATEMENT OF THE CASE1 1
Konstantin N. Malitski (Appellant) seeks review under 35 U.S.C. § 134 2
of a final rejection of claims 1-10, 12-18, 20, and 21, the only claims 3
pending in the application on appeal2. We have jurisdiction over the appeal 4
pursuant to 35 U.S.C. § 6(b). 5
The Appellant invented a way of splitting of orders for transportation 6
planning (Specification 1). 7
An understanding of the invention can be derived from a reading of 8
exemplary claim 1, which is reproduced below [bracketed matter and some 9
paragraphing added]. 10
1. A computer implemented method comprising: 11
[1] receiving an order for goods 12
in an order planning computer; 13
[2] simulating a split of the order for transportation 14
in the order planning computer; 15
and 16
[3] generating a shipment document 17
reflecting the split of the order 18
as part of a persistent transportation plan, 19
the shipment document including a link to the order. 20
The Examiner relies upon the following prior art: 21

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed September 29, 2010) and Reply Brief (“Reply Br.,” filed January
21, 2011), and the Examiner’s Answer (“Ans.,” mailed December 6, 2010).
2 Claim 22 is withdrawn (App. Br. 3).
Appeal 2011-007937
Application 11/212,315

3
Arunapuram US 2002/0019759 A1 Feb. 14, 2002
Jenkins US 2002/0188499 A1 Dec. 12, 2002
Peterkofsky US 2006/0195348 A1 Aug. 31, 2006
Manolis US 7,243,079 B1 Jul. 10, 2007
Claims 1-7, 9-10, and 12-13 stand rejected under 35 U.S.C. § 103(a) as 1
unpatentable over Arunapuram and Manolis. 2
Claims 8 and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable 3
over Arunapuram, Manolis, and Jenkins. 4
Claims 9, 10, 12-18, and 20 stand rejected under 35 U.S.C. § 103(a) as 5
unpatentable over Arunapuram, Manolis, and Peterkofsky. 6
ISSUES 7
The issues of obviousness turn primarily on whether the limitation 8
“simulation” is sufficiently broad to encompass the computer actions of 9
Arunapuram. 10
FACTS PERTINENT TO THE ISSUES 11
The following enumerated Findings of Fact (FF) are believed to be 12
supported by a preponderance of the evidence. 13
Facts Related to Claim Construction 14
01. The disclosure contains no lexicographic definition of 15
“simulation.” 16
Facts Related to Appellant’s Disclosure 17
02. The Specification does not disclose any implementation for 18
performing a simulation. 19
Appeal 2011-007937
Application 11/212,315

4
Facts Related to the Prior Art 1
Arunapuram 2
03. Arunapuram is directed to a transport manager for determining an 3
optimal, cost-minimizing set of product transportation decisions 4
based upon expected transportation costs. This further relates to 5
an electronic transportation plan execution and freight payment 6
managers for tracking and controlling the delivery and/or pickup 7
of products according to an optimized transportation plan as well 8
as forwarding payments and invoices for the transport of the 9
products. Arunapuram para 0002. 10
04. Arunapuram’s problem-solver logic can split orders, combine 11
orders for shipping together, and then build, solve, and save an 12
optimized transportation plan and provide that proposed solution 13
via the routed order interface without active interaction from a 14
transportation planner. Each batch run of the problem-solver 15
module can be configured by the transportation planning manager 16
to run automatically. A batch can be triggered to run at a preset 17
time or at the completion of a download of certain orders, or can 18
be configured to run according to a preset schedule for specific 19
horizon timelines. The rates quoted by carriers often depend upon 20
the distance for which the order has to be transported. To this end, 21
Arunapuram determines the distance between an origination and 22
destination point quoted for each order. The routed order interface 23
outputs a flat file that details the proposed optimized 24
transportation plan, consisting of one or more freight movements, 25
Appeal 2011-007937
Application 11/212,315

5
developed by the problem-solver logic. This optimized 1
transportation plan includes a detailed schedule of routes (at least 2
one route for each order) including dispatch times, expected return 3
times, and expected wait time occurrences at each leg of a 4
delivery route. Additionally, the flat file includes chosen carriers 5
for each shipment, the expected travel distances and times 6
between stops, and the expected costs to be charged by each 7
carrier. The flat file provided by the routed order interface could 8
optionally be provided directly to a transportation manager for 9
review. Arunapuram paras 0040-0042. 10
Manolis 11
05. Manolis is directed to a user interface for an online print service. 12
Manolis 1:11-12. 13
06. Manolis describes sending a link to an order. Manolis 9:24-36. 14
Peterkofsky 15
07. Peterkofsky is directed to transportation planning in light of drop 16
trailer arrangements. It may consolidate orders, plan loads, and/or 17
assign consolidated orders to loads and may be configured to 18
consider drop-trailer arrangements when consolidating, planning, 19
and/or assigning. It may consolidate orders, route loads, and 20
assign orders to loads may be reconfigured to re-examine 21
consolidation, routing, and/or assigning decisions based on post-22
calculation examination of drop-trailer arrangements. Peterkofsky 23
para 0019. 24
Appeal 2011-007937
Application 11/212,315

6
08. Peterkofsky describes the technique of determining an initial plan, 1
communicating that plan to carriers, and then responding to carrier 2
information concerning possibilities and re-optimizing the plan 3
based on this “just in time” information. Peterkofsky para 0056. 4
09. Peterkofsky’s shipping model may describe, for example, 5
shipping modes, carriers, facilities, a transportation network, and 6
drop trailer arrangements between the facilities and the carriers. 7
Additionally, the shipping model may include data concerning 8
factors relevant to shipping an item from a source to a destination 9
like a transportation network configuration, the capacity of various 10
types of equipment, transit times across portions of the 11
transportation network, commodity to commodity compatibilities, 12
commodity to equipment compatibilities, commodity to facility 13
compatibilities, commodity to carrier compatibilities, facility to 14
equipment compatibilities, rules for carriers, carrier limits, laws 15
concerning hours of service for drivers and/or equipment, days on 16
which a facility may be open, hours during which a facility may 17
operate, the availability of equipment (e.g., tractors, trailers), the 18
availability of drivers, the capacity of a facility, carrier pickup 19
lead times, ship sets (e.g., groups of items that need to be shipped 20
together), and so on. Peterkofsky para 0058. 21
Appeal 2011-007937
Application 11/212,315

7
ANALYSIS 1
Claims 1-7, 9-10, and 12-13 rejected under 35 U.S.C. § 103(a) as 2
unpatentable over Arunapuram and Manolis. 3
Claims 8 and 21 rejected under 35 U.S.C. § 103(a) as unpatentable over 4
Arunapuram, Manolis, and Jenkins. 5
We are not persuaded by the Appellants’ argument that 6
Arunapuram is silent regarding simulating the split of an order. 7
Rather, Arunapuram discloses that an order may be split and 8
then the lowest cost route for the order may be saved as an 9
optimized transportation plan as determined by a rate table 10
calculation . . . . Arunapuram fails to employ any manner of 11
simulation for splitting an order. 12
App. Br. 5-6. Claim 1 recites three steps: (1) receiving an order; (2) 13
simulating a split of the order; and (3) generating a shipment document. 14
That Arunapuram employs order split logic is clearly uncontested. The issue 15
is whether when Arunapuram performs that split logic, the performance is 16
within the scope of the word “simulation.” 17
The Specification nether defines, nor even discloses an exemplary 18
implementation of a simulation. Thus, we are left to construe the limitation 19
according to its plain meaning. Its’ plain meaning is extremely broad in a 20
software context. 21
Every operation a computer performs is part of a program, and every 22
program is a metaphoric simulation of what the programmer designed the 23
program to represent. Thus, the order split logic, which occurs only in 24
computer memory and not in physical reality, is a simulation of the 25
subsequent order split reality. 26
Appeal 2011-007937
Application 11/212,315

8
Claims 9, 10, 12-18, and 20 rejected under 35 U.S.C. § 103(a) as 1
unpatentable over Arunapuram, Manolis, and Peterkofsky. 2
Claim 9 recites the limitation of 3
split logic to simulate a split of an incoming order in the 4
volatile memory to define freight units for items in the 5
incoming order based on a shipment compatibility of the items 6
with each other and subsequently to divide the freight units 7
based on capacity of a transportation vehicle 8
App. Br. 13, Claims Appendix. Thus, claim 9 further limits claim 1 only 9
in providing reasons for a split, viz. compatibility of shipped items and 10
vehicle capacity. No implementation for this is disclosed; only high level 11
logic diagrams. 12
The Examiner applied Peterkofsky for applying rules for adjusting 13
shipping contents, and one of ordinary skill in the arts of shipping and 14
logistics would have understood both item compatibility and vehicle 15
capacity to be critical parameters in adjusting shipping contents. After all, 16
one would not ship iceberg lettuce with tropical plants, and one would not 17
ship ten tons of items in a five ton capacity truck. Appellant argues the 18
specific examples shown in Peterkofsky, but Peterkofsky’s broader teaching 19
of re-optimizing a shipping plan clearly envisions further predictable 20
variations. 21
CONCLUSIONS OF LAW 22
The rejection of claims 1-7, 9-10, and 12-13 under 35 U.S.C. § 103(a) as 23
unpatentable over Arunapuram and Manolis is proper. 24
The rejection of claims 8 and 21 under 35 U.S.C. § 103(a) as 25
unpatentable over Arunapuram, Manolis, and Jenkins is proper. 26
Appeal 2011-007937
Application 11/212,315

9
The rejection of claims 9, 10, 12-18, and 20 under 35 U.S.C. § 103(a) as 1
unpatentable over Arunapuram, Manolis, and Peterkofsky is proper. 2
DECISION 3
The rejection of claims 1-10, 12-18, 20, and 21 is affirmed. 4
No time period for taking any subsequent action in connection with this 5
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 6
§ 1.136(a)(1)(iv) (2011). 7
8
AFFIRMED 9
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rvb 14
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