Ex Parte Merker et al

Patent Trial and Appeal Board

Aug 26, 2013

10306815 (P.T.A.B. Aug. 26, 2013)

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.
10/306,815 11/27/2002 Stefan Merker 006741.P026 8209
45062 7590 08/27/2013
SAP/BSTZ
BLAKELY SOKOLOFF TAYLOR & ZAFMAN
1279 Oakmead Parkway
Sunnyvale, CA 94085-4040
EXAMINER
ADE, OGER GARCIA
ART UNIT PAPER NUMBER
3687
MAIL DATE DELIVERY MODE
08/27/2013 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 1
___________ 2
3
BEFORE THE PATENT TRIAL AND APPEAL BOARD 4
___________ 5
6
Ex parte STEFAN MERKER, CHRISTIAN FARHAD WOEHLER, 7
THOMAS KRETZ, and THOMAS JOHN 8
___________ 9
10
Appeal 2011-008149 11
Application 10/306,815 12
Technology Center 3600 13
___________ 14
15
16
Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and 17
MEREDITH C. PETRAVICK, Administrative Patent Judges. 18
FETTING, Administrative Patent Judge. 19
DECISION ON APPEAL 20
21
Appeal 2011-008149
Application 10/306,815

2

STATEMENT OF THE CASE1 1
Stefan Merker, Christian Farhad Woehler, Thomas Kretz, and Thomas 2
John (Appellants) seek review under 35 U.S.C. § 134 of a final rejection of 3
claims 1-33, the only claims pending in the application on appeal. We have 4
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 5
The Appellants invented methods and apparatuses for supply chain 6
planning and management (Spec. 1:11-15). 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 method, performed on a computer, for use in managing a 11
supply chain, comprising: 12
storing, by the computer, a sales forecast for a product 13
from a location, the sales forecast including separate sales 14
forecast data for the product specific to at least one other 15
descriptive characteristic; 16
receiving a sales order for the product; and 17
processing, by the computer, the sales forecast and the 18
sales order. 19
20
The Examiner relies upon the following prior art: 21
22
Kennedy
Wilson
Adler
Menninger
US 6,167,380
US 2002/0133387 A1
US 2002/0169658 A1
US 7,072,843 B2
Dec. 26, 2000
Sep. 19, 2002
Nov. 14, 2002
Jul. 4, 2006

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed September 7, 2010) and Reply Brief (“Reply Br.,” filed February
7, 2011), and the Examiner’s Answer (“Ans.,” mailed December 7, 2010),
and Final Rejection (“Final Rej.,” mailed April 28, 2010).
Appeal 2011-008149
Application 10/306,815

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1
Claims 1-33 stand rejected under 35 U.S.C. § 112, second paragraph, as 2
indefinite. 3
Claims 1-3, 7, 10-13, 17, 20-23, 27, and 30-33 stand rejected under 35 4
U.S.C. § 103(a) as unpatentable over Kennedy, Menninger, and Adler. 5
Claims 4-6, 8, 9, 14-16, 18, 19, 24-26, 28, and 29 stand rejected under 6
35 U.S.C. § 103(a) as unpatentable over Kennedy, Menninger, Adler, and 7
Wilson2. 8
9
FACTS PERTINENT TO THE ISSUES 10
The following enumerated Findings of Fact (FF) are believed to be 11
supported by a preponderance of the evidence. 12
Facts Related to Claim Construction 13
01. The disclosure contains no lexicographic definition of 14
“processing.” 15
Facts Related to Appellants’ Specification 16
02. The Specification defines the claim term “[c]onsuming means 17
replacing requirements of the sales forecast with requirements of 18
the sales order.” (Spec. 3:4-5). 19

2 We take as inadvertent error the omission of Adler from the statement of
rejection at page 10 of the Answer, because these claims depend from claims
rejected over a combination that includes Adler.
Appeal 2011-008149
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Facts Related to the Prior Art 1
Kennedy 2
03. Kennedy is directed to demand management, supply chain 3
management, and configure-to-order processes, and more 4
specifically to managing available-to-promise for fulfilling 5
customer requests. (Kennedy, col. 1, ll. 24-29). 6
04. Kennedy discloses that “the manufacturer must build product 7
and/or intermediate items before receiving customer orders. This 8
production is based on projections called ‘forecast orders’. A 9
product produced based on these forecast orders is referred to as 10
‘available to promise’ or ‘ATP’.” (Kennedy, col. 2, ll. 18-23). 11
05. Kennedy discloses that the “primary purpose of forecasting and 12
forecast management is to estimate the sales potentials for each of 13
the products, independently.” (Kennedy, col. 4, ll. 48-50). 14
06. Kennedy discloses storing a sales forecast, claiming a “system ... 15
comprising ... a forecast model for the product that is stored in the 16
memory ....” (Claim 1). 17
07. Kennedy discloses that “[p]roducts can be defined for a certain 18
customer(s) ....” (Kennedy, col. 4, ll. 24-28). 19
08. Kennedy discloses that “[a]llocations can be made to any level in 20
the [sales] hierarchy.” (Kennedy, col. 4, ll. 30-31). 21
09. Kennedy discloses location information associated with products, 22
in that a “product can define one or more items that are available 23
to a set of customers with a certain delivery lead time to certain 24
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delivery territories, at a certain price.” (Kennedy, col. 4, ll. 41-1
43). 2
10. Kennedy discloses that: 3
The primary purpose of master planning is to determine 4
how capacity and materials will be allocated in order to best 5
meet the forecasts for these products. Master planning 6
determines how much of each product will be available and 7
when. Order promising is then performed in terms of those 8
allocations to these products. In this sense, the products 9
define the granularity of the seller's master plan. 10
(Kennedy, col. 4, ll. 50-57). 11
11. Kennedy discloses receiving a customer order. (Kennedy, col. 5, 12
ll. 38-42). 13
12. Kennedy discloses comparing an order with a forecast, and 14
consuming the forecast: 15
The allocated amount is the summary amount the seller 16
has available to promise customer requests. When customer 17
request 128 arrives to the seller for product 110 during 18
period 114, the seller can take one or both (or part of one or 19
both) promises that it has already received, break them up 20
or combine them to form a promise for the customer 21
request. The forecast requests are simultaneously adjusted 22
down by the amount of the customer request. So, for 23
example, if the committed value of forecast entry 116 was 24
500 units, the two forecast requests 120 and 124 were for 25
250 units each, the two promises 122 and 126 were received 26
for 200 units, and the customer request 128 was for 300 27
units, then the two forecast requests 120 and 124 will be 28
adjusted to a total of 200 (i.e., 200 and 0 or 100 and 100 or 29
some other combination, dependent upon the product's 30
forecast policy). 31
(Kennedy, col. 5, ll. 37-51). 32
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13. Kennedy discloses prioritizing orders, stating: 1
Sellers can form a hierarchy. Each seller can be a member 2
of another seller, called its ‘organization’. Allocations can 3
be made to any level in the hierarchy. Sellers can use 4
allocations to themselves or any of their organizations, 5
depending upon allocation policies of the seller hierarchy. 6
Sellers can have an associated rank used to prioritize the 7
allocations. 8
(Kennedy, col. 4, ll. 29-34). 9
14. Kennedy discloses in background that multiple tools may be 10
required to “implement the entire demand management strategy.” 11
15. Kennedy discloses updating forecast values. (Kennedy, col. 14, ll. 12
38-45). 13
Menninger 14
16. Menninger is directed to methods for forecasting the sale of 15
goods. (Menninger, col. 1, ll. 66-67). 16
17. Menninger discloses reporting on product substitutions. (Col. 23, 17
l. 63 to col. 24, l. 4). 18
ANALYSIS 19
Claims 1-33 rejected under 35 U.S.C. § 112, second paragraph 20
We are persuaded by Appellants’ argument that independent claims 1, 21
11, and 21 are not indefinite because the “other descriptive characteristic” 22
needs no antecedent since it refers to a characteristic “in addition to the 23
product and the location.” (App. Br. 10-11, Reply Br. 2). The Examiner did 24
not respond to this argument. We agree with the Appellants, for the reasons 25
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they provide, so we reverse the rejection under 35 U.S.C. § 112 of claims 1-1
33. 2
Claims 1-3, 7, 10-13, 17, 20-23, 27, and 30-33 rejected under 35 U.S.C. 3
§ 103(a) as unpatentable over Kennedy, Menninger, and Adler. 4
Claims 1, 11, and 21 5
Claims 1, 11, and 21 are argued together as a group (App. Br. 14), so we 6
select claim 1 as representative. See, 37 C.F.R. § 41.37(c)(1)(vii). 7
Claim 1 recites a method with three steps for storing, receiving, and 8
processing. The term processing is not defined or described in the 9
Specification (FF 01), so we construe the term as requiring a process is 10
performed on the data of the sales forecast and sales order, but with no 11
limitation of what such a process may be. 12
We are not persuaded by Appellants’ argument that Kennedy and Adler 13
do not disclose storing a sales forecast with “separate sales forecast data for 14
the product specific to at least one other descriptive characteristic.” (App. 15
Br. 12-14, Reply Br. 4-5), because we find Kennedy discloses storing a sales 16
forecast (FF 04-06), including quantity and when needed (FF 10), which 17
meets the claim language because quantity and time are “other descriptive 18
characteristics.” 19
Claims 2, 12, and 22 20
Claims 2, 12, and 22 are argued together as a group (App. Br. 15), so we 21
select claim 2 as representative. Dependent claim 2 recites: 22
comparing the product, the location, and the at least one 23
other descriptive characteristic from the sales forecast to a 24
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product, a location, and at least one other descriptive 1
characteristic from the sales order; and 2
consuming at least a portion of the sales forecast if there 3
is at least one match between the product, the location, and the 4
at least one other descriptive characteristic from the sales 5
forecast and the product, the location, and the at least one other 6
descriptive characteristic from the sales order. 7
We are not persuaded by Appellants’ argument that the combination 8
fails to disclose the comparing step. (App. Br. 14-16, Reply Br. 5-6). We 9
find Kennedy discloses location information associated with a product (FF 10
09), receiving a customer order (FF 11), and comparing the order, including 11
the “other descriptive characteristic” of quantity (FF 12), thus meeting the 12
claim language. Because we find Kennedy discloses this claim limitation, 13
Menninger and Adler are cumulative. 14
We are not persuaded by Appellants’ argument that the combination 15
fails to disclose the “consuming” step. (App. Br. 16-17, Reply Br. 6-7). We 16
first find the Specification defines or describes the term “consuming,” that it 17
“means replacing requirements of the sales forecast with requirements of the 18
sales order.” (FF 02). We find Kennedy discloses replacing requirements of 19
the sales forecast with the requirements of the sales order, when it compares 20
an order with the forecast and adjusts the forecast (FF 12), thus meeting the 21
claim language. 22
Claims 3, 13, and 23 23
Claims 3, 13, and 23 are argued together as a group (App. Br. 18), so we 24
select claim 3 as representative. Dependent claim 3 recites “wherein 25
consuming comprises replacing requirements of the sales forecast with 26
requirements of the sales order.” We construe the meaning of claim 3 to 27
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match that of claim 2, because the term “consuming” is defined in the 1
Specification consistent with the language of claim 3. 2
We are not persuaded by Appellants’ argument that the combination 3
does not disclose the limitation of claim 3 (App. Br. 17-18, Reply Br. 7-8), 4
for the same reasons as for claim 2. 5
Claims 7, 17, and 27 6
Claims 7, 17, and 27 are argued together as a group (App. Br. 19), so we 7
select claim 7 as representative. Dependent claim 3 recites “performing an 8
available-to-promise check using the sales forecast based on the at least one 9
other descriptive characteristic.” 10
We are not persuaded by Appellants’ argument that the combination 11
fails to disclose the claim language (App. Br. 18-19, Reply Br. 8), because 12
Kennedy discloses performing an available-to-promise check upon receiving 13
an order, based on quantity (FF 12). 14
Claims 10, 20, and 30 15
Claims 10, 20, and 30 are argued together as a group (App. Br. 21), so 16
we select claim 10 as representative. Dependent claim 10 recites 17
“performing a transfer of supply connected to a sales order or forecast to a 18
demand planning application using the at least one other descriptive 19
characteristic.” 20
We are not persuaded by Appellants’ argument that the combination 21
fails to disclose the claim limitation because Adler “does not mention 22
transferring anything.” (App. Br. 19-20, see also Reply Br. 8-9). We find 23
Kennedy discloses several applications may be necessary for demand 24
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management, and discloses updating the forecast as changes take place (FF 1
14, 15). We find one of ordinary skill would recognize that since demand 2
planning often relates to history and does not start “at zero” for each 3
subsequent period, that transferring information from the current plan to a 4
new or updated plan for the future may involve transferring information to 5
another application. See KSR Int'l. Co. v. Teleflex Inc., 550 U.S. 398, 418 6
(2007). (In making the obviousness determination one “can take account of 7
the inferences and creative steps that a person of ordinary skill in the art 8
would employ.”) 9
Claims 31-33 10
Claims 31-33 are argued together as a group (App. Br. 21-22), so we 11
select claim 31 as representative. Dependent claim 31 recites “obtaining a 12
sales forecast that is specific to the at least one other descriptive 13
characteristic.” 14
We are not persuaded by Appellants’ argument that the combination of 15
Kennedy, Menninger, and Adler fails to disclose the claim limitation. (App. 16
Br. 21-22, Reply Br. 9-10). We find Kennedy discloses a forecast specific to 17
lead times and dates (FF 09, 10), thus meeting the claim language. 18
Claims 4-6, 8, 9, 14-16, 18, 19, 24-26,28, and 29 rejected under 35 U.S.C. 19
§ 103(a) as unpatentable over Kennedy, Menninger, Adler, and Wilson. 20
Claims 4, 14, and 24 21
Claims 4, 14, and 24 are argued together as a group (App. Br. 23), so we 22
select claim 4 as representative. Dependent claim 4 recites “wherein the at 23
least one additional descriptive characteristic relates to customer identity.” 24
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We are not persuaded by Appellants’ argument that Menninger fails to 1
disclose the claim language because Menninger discloses instead “a store, 2
distributor, or supplier.” Id. We find Kennedy discloses defining products 3
and forecasting to the level of the specific customer (FF 07), thus meeting 4
the claim language. 5
Claims 5, 15, and 25 6
Claims 5, 15, and 25 are argued together as a group (App. Br. 24-25), so 7
we select claim 5 as representative. Dependent claim 5 recites “the at least 8
one other descriptive characteristic relates to customer identity; and the sales 9
forecast is customer-specific.” 10
We are not persuaded by Appellants’ arguments that “[i]t does not 11
follow that simply because a product is customer-specific, a sales forecast 12
would also be customer specific. Furthermore, Kennedy does not mention 13
that the forecasted product is customer specific.” Id.; see also Reply Br. 11-14
12. We find Kennedy discloses defining products and forecasting to the 15
level of the specific customer (FF 07), thus meeting the claim language. 16
17
18
Claims 6, 16, and 26 19
Claims 6, 16, and 26 are argued together as a group (App. Br. 24-25), so 20
we select claim 5 as representative. Dependent claim 6 recites “comparing 21
the customer identity associated with the sales order to a customer identity 22
associated with the sales forecast; and if the customer identity associated 23
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with the sales order corresponds to the customer identity associated with the 1
sales forecast, the sales order consumes the sales forecast.” 2
We are not persuaded by Appellants’ argument that Menninger fails to 3
disclose the claim language because Menninger does not mention comparing 4
customer identities or comparing any sales forecast to any sales order. (App. 5
Br. 25-27; see also Reply Br. 12-14). We find that Kennedy discloses 6
defining products and forecasting to the level of the specific customer (FF 7
07) and consuming the forecast by orders (FF 12). We find one of ordinary 8
skill would recognize that once an order for a product is received, it would 9
be compared to the forecast for that product, which is based on a specific 10
customer, to ensure there is a match, so that the demand planning is not 11
affected by an incorrectly-directed order. See KSR, at 418. 12
Claims 8, 18, and 28 13
Claims 8, 18, and 28 are argued together as a group (App. Br. 25-27), so 14
we select claim 8 as representative. Dependent claim 8 recites “the at least 15
one other descriptive characteristic relates to customer identity; and 16
processing comprises prioritizing at least one of the sales order and the sales 17
forecast by customer identity.” 18
We are not persuaded by Appellants’ argument that the combination 19
fails to disclose the claim limitation, at least because the “user in Menninger 20
is not a customer, and the user identity does not relate to a descriptive 21
characteristic of sales forecast data.” (App. Br. 28-29; Reply Br. 14). We 22
find Kennedy discloses prioritizing by seller (FF 13) and defining products 23
specific to customers (FF 07). Because Kennedy discloses forecasting by 24
customer-specific product, and prioritizing at “any level in the hierarchy” 25
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(FF 13), we find that for one of ordinary skill it would be a small step to 1
prioritize directly by customer. See KSR, at 418. 2
Claims 9, 19, and 29 3
Claims 9, 19, and 29 are argued together as a group (App. Br. 29-30), so 4
we select claim 9 as representative. Dependent claim 9 recites “the at least 5
one other descriptive characteristic relates to customer identity; and 6
processing comprises making product substitutions for distribution based on 7
customer identity.” 8
We are not persuaded by Appellants’ argument that the combination 9
does not disclose this limitation. (App. Br. 29-30, Reply Br. 15-16). We 10
find Menninger discloses keeping track of substitutions for products (FF 17), 11
and that one of ordinary skill would recognize that similar products 12
sometimes can be substituted for other products, so that non-customer-13
specific products may be substituted for customer-specific products, thus 14
meeting the claim language. See KSR, at 418. 15
CONCLUSIONS OF LAW 16
The rejection of claims 1-3, 7, 10-13, 17, 20-23, 27, and 30-33 under 17
35 U.S.C. § 103(a) as unpatentable over Kennedy, Menninger, and Adler is 18
proper. 19
The rejection of claims 4-6, 8, 9, 14-16, 18, 19, 24-26, 28, and 29 under 20
35 U.S.C. § 103(a) as unpatentable over Kennedy, Menninger, Adler, and 21
Wilson is proper. 22
DECISION 23
The rejection of claims 1-33 is affirmed. 24
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1
No time period for taking any subsequent action in connection with 2
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 3
§ 1.136(a)(1)(iv). 4
5
AFFIRMED 6
7
8
9
JRG 10