Ex Parte Ayala et al

Patent Trial and Appeal Board

Mar 26, 2013

09909686 (P.T.A.B. Mar. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD

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Ex parte ROBERTO AYALA,
MICHAEL P. MURRAY, and
MAURICIO ALEJANDRO VILLALOBOS
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Appeal 2011-001403
Application 09/909,686
Technology Center 3600
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Before MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and
BIBHU R. MOHANTY, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1-7, 9-23, and 25-34. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

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BACKGROUND
Appellants’ invention is directed to an inventory management system
which dynamically determines the projected days of supply of inventory
(Spec. 1, ll. 5-9).
Claim 17 is illustrative:
17. A storage medium encoded with machine-readable
computer program code for managing inventory of a stock item
over a number of specified time periods, the storage medium
including instructions for causing a computer to implement a
method, comprising:
receiving an updated demand forecast;
selecting a search criteria for determining projected days
of supply;
extracting current data related to said search criteria, the
current data including supplier commitment data;
updating projected forecast data, the projected forecast
data including a quantity of said stock item expected to be
consumed during at least one of said number of specified time
periods;
determining for a given time period:
projected inventory level using said projected forecast
data, said supplier commitment data, and prior periods’
projected inventory levels; and
projected days of supply of inventory using said
projected inventory level for a current time period and projected
forecast data for subsequent periods; and
when said projected days of supply is out of a
predetermined range for a given time period, taking corrective
action.

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DISPOSITION OF APPEAL
In a Second Examiner’s Answer,1 mailed December 9, 2008,2 the
Examiner entered a new ground of rejection against independent claim 1,
and claims 2-7 dependent therein, under 35 U.S.C. § 101 as being directed to
non-statutory subject matter. (See Second Ans. 4-5.) The Examiner
properly gave notice of the new ground of rejection. (Second Ans. 16-17.)
As the Second Answer indicated, Appellants were required to respond to the
new ground within two months in either of two ways: 1) reopen prosecution
(see 37 C.F.R. § 41.39(b)(1)); or 2) maintain the appeal by filing a reply
brief as set forth in 37 C.F.R. § 41.41 (see 37 C.F.R. § 41.39(b)(2)), “to
avoid sua sponte dismissal of the appeal as to the claims subject to the new
ground of rejection.” (Second Ans. 16)
Subsequently, a Third Examiner’s Answer was mailed, on July 23,
2010, addressing the Examiner’s failure to include claims 9-16 and 33, also
dependent upon independent claim 1, in the new ground of rejection asserted
in the Second Examiner’s Answer.3 The Examiner again properly gave
notice of the new ground of rejection made in the Second Examiner’s
Answer and updated, in the Third Examiner’s Answer, to reflect the omitted
dependent claims. (Third Ans. 15-16.) According to the record before us,

1 A First Examiner’s Answer was mailed on November 28, 2007.
2 The Second Examiner’s Answer was mailed in response to an
Administrative Order, mailed December 3, 2008, remanding the instant
appeal to the Examiner.
3 The Third Examiner’s Answer was mailed in response to an Administrative
Order, mailed April 13, 2010, instructing the Examiner to include claims 9-
16 and 33 in the new ground of rejection under 35 U.S.C. § 101 made in the
Second Examiner’s Answer.
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neither option appears to have been exercised following either of the second
or third Examiner’s Answers.
Accordingly, the appeal as to claims 1-7, 9-16 and 33 subject to the
new ground of rejection under 35 U.S.C. § 101 stands dismissed. Upon
return of the application to the Examiner, the Examiner should (1) cancel
claims 1-7, 9-16, and 33 subject to the new ground of rejection and (2)
notify Appellants that the appeal as to claims 1-7, 9-16 and 33, subject to the
new ground of rejection under 35 U.S.C. § 101, is dismissed and claims 1-7,
9-16, and 33 are cancelled. See Manual of Patent Examining Procedure
(MPEP) § 1207.03 (8th ed., Rev. 9, Aug. 2012).
Given that the appeal as to claims 1-7, 9-16 and 33 stands dismissed,
the rejections before us for review are reduced to as follows:
Claims 17, 18, 22-23, 25-26, and 29-32 rejected under 35 U.S.C.
§ 103(a) as unpatentable over Feigin (US 6,006,196; iss. Dec. 21, 1999) and
Graves (US Statutory Invention Registration No. H1743; pub. Aug. 4,
1998).
Claims 19-21, 27-28, and 34 rejected under 35 U.S.C. § 103(a) as
unpatentable over Feigin, Graves, and Aram (US 2002/0072986 Al; pub.
Jun. 13, 2002).

FACTUAL FINDINGS
We adopt the Examiner’s findings as our own. Third Ans. 5-8.
Additional findings of fact may appear in the Analysis that follows.

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ANALYSIS
Claims 17, 18, 22-23, 25-26, and 29-32 rejected under 35 U.S.C. § 103(a) as
unpatentable over Feigin and Graves.
We are not persuaded of error by the Appellants’ argument that the
combination of Feigin and Graves fails to teach or suggest “selecting a
search criteria for determining projected days of supply,” as recited by
independent claim 17. Br. 9. Appellants assert that Graves “merely
describe[s] an algorithm for recursively calculating replenishment
requirements, on-hand inventory, and backordered demand for a specific
product at a specific location,” but fails to teach or suggest “that the specific
product is selected by means of search criteria.” Br. 10.
We agree with the Examiner that Feigin discloses a distribution
resource planning (DRP) logic which provides estimates of at least one of
projected future on-hand inventory and replenishment requirements of a
specific product (col. 2, ll. 27-31), and as such, discloses determining
projected supply for at one specific product. While Appellants’ assert that
Feigin fails to teach or suggest “that the specific product is selected by
means of search criteria” (Br. 10), Feign discloses calculating replenishment
requirements, on-hand inventory, and backordered demand in the future for
a specific product at a specific location (col. 3, ll. 20-25).
Feigin further discloses that its method can be applied to situations in
which demand is correlated across time or among different products (col. 10,
ll. 25-27), which one of ordinary skill in the art at the time of the invention
would understand to require the selection of a search requirement in order to
calculate or determine a projected product supply for a specific product.
This interpretation is commensurate with the scope of Appellants’
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Specification which merely states that “the search criteria is a part number,
part name, and/or description” (Spec. 12, ll. 19-22). Accordingly, we find
the combination of Feigin and Graves teaches or suggests “selecting a search
criteria for determining projected days of supply,” as recited by independent
claim 17.
We are also not persuaded of error by the Appellants’ argument that
the combination of Feigin and Graves fails to teach or suggest “extracting
current data related to said search criteria,” as recited by independent claim
17. Br. 10. Appellants assert that “[t]here is simply no teaching or
suggestion in Graves relating to a search criteria and, consequently, there is
no teaching or suggestion that current data related to the search criteria are
extracted.” Br. 10. However, the Examiner does not rely on Graves to
disclose the step of “selecting a search criteria,” but instead relies on Graves
to address the step of “extracting current data related to said search criteria,
the current data including supplier commitment data.” Third Ans. 6-7.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
Even so, to the extent Appellants argue that Graves fails to teach or
suggest “extracting current data,” we find such an argument to be
unpersuasive. In doing so, we agree and adopt as our own, the Examiner’s
response to this argument found on pages 13-14 of the Third Answer. That
is we find Graves inventory management system which compares a
product’s projected usage level to the actual usage level at predetermined
time periods, such as, every three hours (col. 11, ll. 1-9) teaches “extracting
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current data” with the remainder of the limitation addressed by the
combination of Feigin and Graves. See Third Ans. 7-8.
In view of the foregoing, we will sustain the Examiner’s rejection of
independent claim 17. We will also sustain the Examiner’s rejection of
remaining claims 18, 22-23, 25-26, and 29-32 because Appellants have not
argued the separate patentability of these dependent claims.

Claims 19-21, 27-28, and 34 rejected under 35 U.S.C. § 103(a) as
unpatentable over Feigin, Graves, and Aram.
Appellants do not substantively argue claims 19-22, 27-28, and 34,
which depend from independent claim 17, and so we sustain the rejection of
claims 19-22, 27-28, and 34 under 35 U.S.C. § 103(a) as unpatentable over
Feigin, Graves, and Aram for the same reasons we found as to independent
claim 17 supra.

DECISION
The decision of the Examiner is affirmed.

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Upon return of the application to the Examiner, the Examiner should
(1) cancel claims 1-7, 9-16, and 33 subject to the new ground of rejection
and (2) notify Appellants that the appeal as to claims 1-7, 9-16, and 33,
subject to the new ground of rejection under 35 U.S.C. § 101 as being
directed to non-statutory subject matter, is dismissed and claims 1-7, 9-16,
and 33 are cancelled. See MPEP § 1207.03.
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).

AFFIRMED

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