Ex Parte Wells et al

Board of Patent Appeals and Interferences

May 29, 2012

10375647 (B.P.A.I. May. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte PAUL CHRISTOPHER WELLS,
and BRIAN ALAN BATES
____________________

Appeal 2011-005388
Application 10/375,647
Technology Center 3600
____________________

Before: MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, BIBHU R.
MOHANTY, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-005388
Application 10/375,647

2
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 1-21 and 24-39. We have jurisdiction under 35
U.S.C. § 6(b). (2002). A hearing was held on May 9, 2012.

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
Appellants claim a system and method for managing retail price
products. (Specification 3:21-22).
Claim 1, reproduced below, is representative of the subject matter on
appeal.
1. A system for price management, the system comprising:
a plurality of first network communication devices, each device
associated with at least one of a plurality of retail sales sites, including
a first network communication device of a first retail sales site at a
physical location;
a first price management module configured to operate on the
first network
communication device of the first retail sales site and configured to
electronically transmit sales data of the first retail sales site and
competitor price data of another retail sales site at a different physical
location than the first retail sales site, wherein both the sales data and
the competitor price data:
are for at least one retail sales commodity,
are transmitted from the first retail sales site to a central
pricing site, and
are each site-specific to the physical location ofthe first
retail sales site;
a second network communication device associated with the
central pricing site; and
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a second price management module configured to operate on
the second network
communication device, the second price management module further
configured to electronically receive the data transmitted by the
plurality of first network communication devices, determine if a site-
specific price adjustment is required for a retail sales site based upon
the data received from the plurality of first network communication
devices, and, when the site-specific price adjustment is required for a
retail sales site, electronically transmit the site-specific price
adjustment to the first network communication device associated with
the retail sales site of the site-specific price adjustment when a site-
specific price adjustment is determined to be required,
wherein the first network communication devices associated
with the retail sales sites are configured to receive site-specific price
adjustments from the second price management module of the second
network communication device associated with the central pricing
site, wherein the first price management modules of the first network
communication devices associated with the retail sales sites are
configured to automatically adjust a price
for at least one of the retail sale commodities at the retail sales site of
the first network communication device,
wherein the first retail sales site is the retail sales site of the site-
specific price adjustment, wherein the first network communication
device associated with the first retail sales site of the site-specific
price adjustment is configured to receive the sitespecific price
adjustment, and
wherein the first price management module of the first network
communication device associated with the first retail sales site of the
site-specific price adjustment is configured to automatically adjust the
price for at least one of the retail sale commodities at the first retail
sales site.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Reuhl US 5,873,069 Feb. 16, 1999
Deaton US 6,292,786 B1 Sep. 18, 2001
Berkovitz US 2003/0023567 A1 Jan. 30, 2003
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Application 10/375,647

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Grdina US 6,965, 872 B1 Nov. 15, 2005
Yu US 6,983,278 B1 Jan. 3, 2006

The following rejections are before us for review.
The Examiner rejected claims 1,4, 6, 12, 13, and 32-37 under 35
U.S.C. 1 03(a) as being unpatentable over Deaton and Reuhl,

The Examiner rejected claims 2 and 3 under 35 U.S.C. 1 03(a) as
being unpatentable over Deaton, Reuhl and Grdina,

The Examiner rejected claims 7-9, 11, 14-21 and 24-31 under 35
U.S.C. 1 03(a) as being unpatentable over Deaton, and Grdina.

The Examiner rejected Claim 5 under 35 U.S.C. 1 03(a) as being
unpatentable over Deaton, Reuhl, and Berkovitz,

The Examiner rejected claim 10 under 35 U.S.C. 103(a) as being
unpatentable over Deaton, Reuhl, Grdina and,Berkovitz.

The Examiner rejected claim 38 under 35 U.S.C. 103(a) as being
unpatentable over Deaton, Reuhl, and Yu.

ISSUE
The issue of obviousness turns on whether the claimed
“automatically” modifying “implement” only requires the device to
automatically help carry out the adjustment, leaving open who or what
actually makes the adjustment.
App
App

comm
infor
eal 2011-0
lication 10
We find
1. R
competit

2. Deato
unication
3. Reuhl
mation:
The data
include,
ADVER
table, a C
COMPE
table, a P
a REAS

05388
/375,647

the follow
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ors price d
n disclose
link to a
discloses
base table
without lim
TISED SK
OMPETI
TITOR SH
RICE CH
ON table.
FIND
ing facts b
oses at Fig
ata identi
Above is
s that POS
UPC serve
a database
s in accord
itation, a
U table, a
TOR table
OPPED-
ANGE tab
5
INGS OF
y a prepon
ure 8 site-
fied compe
Figure 8 o
informati
r 12. (Co
of price d
ance with
n ITEM ta
n AD RES
, a COMP
ITEMS tab
le, a VAL
FACT
derance o
specific (b
titor A , B
f Reuhl.
on is comm
l.6, ll. 17-
ata with p
the presen
ble, an IT
PONSE t
ETITOR L
le, an ITE
UE ADD
f the evide
y location
C,….
unicated
19).
lural differ
t inventio
EM PRICE
able, a CE
OCATIO
M DERIV
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nce:
)
to via a
ent price
n
table, an
NT CODE
N table, a
ATIVE
table, and

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(Col. 8, 28-44).

ANALYSIS
We reverse the rejection of independent claims 1, 7 and 19, and their
dependent claims; and affirm as to independent claims 12, 14 and 32 and
their dependent claims.
Independent claims 1, 7 and 19
Each of independent claims 1, 7 and 19 required:
a first price management module configured to
operate on the first network communication device
of the first retail fuel sales site and configured to
electronically transmit fuel sales data of the first
retail fuel sales site and competitor fuel price data
of another retail fuel sales site at a different
physical location than the first retail fuel sales site,
and
a second price management module configured to
operate on the second network communication
device, the second price management module
further configured to electronically receive the
data transmitted by the plurality of first network
communication devices, determine if a site-specific
fuel price adjustment is required for a retail fuel
sales site based upon the data received from the
plurality first network communication devices,
and, when the site-specific fuel price adjustment is
required at a retail fuel sales site, electronically
transmit the site-specific fuel price adjustment to
the first network communication device associated
with the retail fuel sales site of the site-specific fuel
price adjustment when a site-specific fuel price
adjustment is determined to be required,…
wherein the first price management modules of the
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first network communication devices associated
with the retail sales sites are configured to
automatically adjust a price for at least one of the
retail sale commodities at the retail sales site of the
first network communication device,
We find that neither Deaton or Reuhl disclose: 1. a module configured
to operate on the first network communication device of the first retail sales
site and another module configured to operate on the second network
communication device, such that the first network module is configured to
electronically transmit sales data of the first retail sales site and competitor
price data of another retail sales site at a different physical location than the
first retail sales site 2. the second network module is configured to
electronically receive the data transmitted by the plurality of first network
communication devices and, when the site-specific price adjustment is
required for a retail sales site, electronically transmit the site-specific price
adjustment to the first network communication device associated with the
retail sales site of the site-specific price adjustment when a site-specific price
adjustment is determined to be required and 3. wherein the first price
management module of the first network communication device associated
with the first retail fuel sales site of the site-specific fuel price adjustment is
configured to automatically adjust the fuel price at fuel pumps of the first
retail fuel sales site associated with the site-specific fuel price adjustment.
The Examiner found that Deaton discloses the two module
arrangement where one of the devices automatically adjusts the price change
based on information received from the other module as required by the
claims. (Answer 4-5).
However, in Deaton, the POS information is transmitted to
manufacturer via a link 24 and any price adjustment which is rendered is
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sent to a Koisk, and not to the module which transmitted the POS
information out and does not automatically adjust the involved price at the
POS. (Deaton, col. 6, ll. 1-49). We further find that although Reuhl in
Figure 8 discloses site-specific sales data, this data is developed by a pricing
program 204 located at the device where the pricing occurs. (Reuhl, col. 11,
ll. 31-62). Accordingly, we will not sustain the rejection of independent
claims 1, 7 and 19, and those claims which are dependent thereupon.
Independent claims 12, 14 and 32
As to these independent claims, our analysis above does not apply
here because independent claims 12 and 14 do not require the first pricing
module make the price adjustment; and independent claim 32 only requires
that the retail sales site communication device “is configured to…
automatically implement the price adjustment”. Appellants’ use of the term
“implement” in claim 32 does not require that the device actually adjusts the
price at the pumps as is required in the claims discussed above. Rather,
because the claim uses the word “automatically” to modify “implement”, it
only requires the device to automatically help carry out the adjustment,
leaving open who or what actually makes the adjustment, e.g., the device
could merely be an automatic receiver of information like the Kiosk in
Deaton.
Inasmuch as Appellants’ remaining arguments pertain to each of
claims 12, 14 and 32, we discuss them together, addressing each of
Appellants’ arguments in turn.
Appellants argue that:
Claims 1 and 12 recite a first price management
module that is configured to transmit two types of
data, namely sales data and competitor price data
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from a retail sales site. Both the sales data and
competitor price data are site-specific to the
physical location of the retail sales site. The sales
data and competitor price data are also claimed as
being associated with two different physical
locations.
(Appeal Br. 16-17).
We disagree with Appellants because we find that at least the
combination of Deaton or Reuhl discloses a device configured to transmit
two types of data one of which is site-specific pricing because Reuhl at
Figure 8 discloses site specific data of competitors at different locations A,
B, C…. In addition, both Deaton and Reuhl taken at least together disclose
the required two types of price data. (FF 2, 3).
Concerning Appellants’ argument that Reuhl teaches away from the
proposed combination, we adopt the Examiner’s findings as set forth on
pages 21-22 of the Answer, and find the Appellants’ assertions unpersuasive
for the reasons set forth by these findings.

CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 12, 13, 14-
18, 32-34, 37.
We conclude the Examiner erred in rejecting claims 1-6, 7-11, 19-21,
24-31, 35, 36 38 39.

DECISION

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Application 10/375,647

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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-IN-PART

MP