Ex Parte Broussard et al

Board of Patent Appeals and Interferences

Jan 12, 2009

10205122 (B.P.A.I. Jan. 12, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
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BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
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Ex parte SCOTT J. BROUSSARD, JOSEPH HERBERT MCINTYRE, and 8
EDUARDO N. SPRING 9
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Appeal 2008-1791 12
Application 10/205,122 13
Technology Center 3600 14
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Decided: January 13, 2009 17
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Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and 20
ANTON W. FETTING, Administrative Patent Judges. 21
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CRAWFORD, Administrative Patent Judge. 23
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DECISION ON APPEAL 26
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STATEMENT OF THE CASE 28
Claims 1-48 were rejected in the Final Office Action mailed February 29
6, 2006.1 We have jurisdiction under 35 U.S.C. § 6(b) (2002).30

1 The Final Rejection of claims 5, 21, and 37 under 35 U.S.C. § 112, second
paragraph, was withdrawn (Examiner’s Answer 3, 5).
Appeal 2008-1791
Application 10/205,122

2
Appellants invented methods, systems, and products for publicly 1
accessible deferred purchasing systems. (Specification 1:12-13). 2
Independent claim 1 under appeal reads as follows: 3
1. A method for operating a publicly accessible 4
purchasing system, the method comprising: 5
6
receiving, on a receipt date, from a 7
purchaser, in a publicly accessible purchasing 8
system, a deferred purchase request (“DPR”) for 9
an item to be purchased; 10
11
identifying a vendor; and 12
13
issuing, in dependence upon the DPR, a 14
purchase order to the vendor on a date subsequent 15
to the receipt date. 16
17
The prior art relied upon by the Examiner in rejecting the claims on 18
appeal is: 19
Kaminsky US 2001/0047308 A1 Nov. 29, 2001 20
Tobin US 2003/0074209 A1 Apr. 17, 2003 21
Tam US 2002/0147656 A1 Oct. 10, 2002 22
Morimoto US 2002/0013774 A1 Jan. 31, 2002 23
I’Anson US 2002/0013736 A1 Jan. 31, 2002 24
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Pella® Product Finder, http://www.pella.com (retrieved via 26
www.archive.org last visited Jun. 27, 2001) (hereinafter referred to as 27
“www.pella.com.”) 28
29
The Examiner rejected claims 1, 2, 5, 16-18, 21, 32-34, 37, and 48 30
under 35 U.S.C. § 102(b) as being anticipated by Kaminsky. 31
The Examiner rejected claims 3, 4, 19, 30, 35, and 36 under 35 U.S.C. 32
§ 103(a) as being unpatentable over Kaminsky in view of Tobin. 33
Appeal 2008-1791
Application 10/205,122

3
The Examiner rejected claims 6, 7, 22, 23, 38, and 39 under 35 U.S.C. 1
§ 103(a) as being unpatentable over Kaminsky in view of Tam. 2
The Examiner rejected claims 8-13, 24-29, and 40-45 under 35 U.S.C. 3
§ 103(a) as being unpatentable over Kaminsky in view of www.pella.com. 4
The Examiner rejected claims 14, 30, and 46 under 35 U.S.C. § 103(a) 5
as being unpatentable over Kaminsky in view of I’Anson. 6
The Examiner rejected claims 15, 31, and 47 under 35 U.S.C. § 103(a) 7
as being unpatentable over Kaminsky in view of Official Notice. 8
We REVERSE. 9
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ISSUE 11
Did the Appellants show the Examiner erred in asserting that a 12
fulfillment of an open order in Kaminsky anticipates “issuing, in dependence 13
upon the [deferred purchase request], a purchase order to the vendor on a 14
date subsequent to the receipt date” as recited in independent claims 1, 17, 15
and 33? 16
17
FINDINGS OF FACT 18
Appellants invented methods, systems, and products for publicly 19
accessible deferred purchasing systems (Specification 1:12-13). 20
Embodiments are presented for operating publicly accessible 21
purchasing systems 106, including receiving 102, on a receipt date, from a 22
purchaser 108, in a publicly accessible purchasing system 106, a deferred 23
purchase request 112 ("DPR") for an item to be purchased; identifying a 24
vendor; and issuing 118, in dependence upon the DPR 112, a purchase order 25
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122 to the vendor 114 on a date subsequent to the receipt date (Figs. 1-2; 1
Specification 3:3-7). 2
“DPR” abbreviates Deferred Purchase Request, a 3
request received in a deferred purchasing system 4
from a purchaser, the request representing an 5
instruction to issue to a vendor on behalf of the 6
purchaser a purchase order formulated according 7
to detailed information provided as part of the 8
DPR. DPRs are non-binding requests that a 9
purchase can alter or cancel at any time prior to 10
issuance of a purchase order. 11
12
(Specification 8:10-14). 13
A“purchase order” is an offer, conferring upon an 14
offerree vendor a power of binding acceptance in 15
accordance with its terms, to purchase, license, 16
lease, rent, or otherwise acquire, goods, services, 17
or intellectual property as described in the 18
purchase order. A purchase order, unlike a DPR, 19
typically is expected to be binding, that is, only 20
capable of termination or alteration in accordance 21
with terms and conditions set forth in the purchase 22
order itself. There is within the scope of the 23
present invention no limitation regarding the form 24
of a purchase order. A purchase order can 25
comprise a contract for purchase of real estate, a 26
real estate lease, a software license, a license of 27
patented industrial technology, an equipment lease, 28
a purchase contract for tangible goods, and so on, 29
including any form of offer as will occur to those 30
of skill in the art. 31
32
(Specification 9:13-22). 33
Appeal 2008-1791
Application 10/205,122

5
A DPR and a purchase order are separate and distinct elements. 1
Kaminsky discloses a sales tool 16 for “liquidating excess or returned 2
inventory in which the system has a variable pricing strategy” (Fig. 2; 3
[0019]). 4
“A manufacturer catalog company, an e-tailer or other merchant may 5
use sales tool 16 from a seller’s viewpoint to dispose of excess inventory,” 6
however, “[a] merchant can use sales tool 16 from the viewpoint of a buyer 7
or a seller” ([0032]-[0033]). 8
The user may also purchase a product by 9
placing an open order 40. This approach is similar 10
to the immediate price strategy, except that the 11
user may seek a purchase price lower than the 12
current price 38. The user places open order 40 at 13
a price below current price 38, and awaits the 14
results of shifts in price trends. If current price 38 15
reaches the price submitted in open order 40 due to 16
shifts in pricing trends, open order 40 is filled and 17
the user receives the product. Open order 40 is 18
valid for the length of time for which the product 19
offer is open. Thus, open order 40 may be made or 20
filled at anytime during the product offering 21
provided that the pricing criteria is met. 22
23
([0036]). 24
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PRINCIPLES OF LAW 26
During examination of a patent application, a pending claim is given 27
the broadest reasonable construction consistent with the specification and 28
should be read in light of the specification as it would be interpreted by one 29
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Application 10/205,122

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of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1
1364 (Fed. Cir. 2004). 2
“A claim is anticipated only if each and every element as set forth in 3
the claim is found, either expressly or inherently described, in a single prior 4
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Ca., 814 F.2d 628, 5
631 (Fed. Cir. 1987). 6
7
ANALYSIS 8
Claims 1, 17, and 33 each recite (1) receiving a DPR from a purchaser 9
and (2) issuing a purchase order to a vendor. The Examiner appears to assert 10
that the placement of open order 40 in Kaminsky corresponds to the receipt 11
of the DPR, and that the fulfillment of open order 40 corresponds to the 12
issuance of the purchase order (Examiner’s Answer 6). Regardless of the 13
exact parameters that distinguish a DPR from a purchase order, the 14
Specification makes clear that the DPR and the purchase order are separate 15
and distinct elements. Kaminsky discloses the receipt/issuance of a single 16
order: open order 40. While open order 40 could arguably correspond to 17
either a DPR or a purchase order, open order 40 cannot be both a DPR and a 18
purchase order, especially when claims 1, 17, and 33 recite that the purchase 19
order is issued in dependence upon the DPR. 20
Accordingly, we do not sustain the rejection of claims 1, 17, and 33 as 21
being anticipated by Kaminsky. Claims 2-16, 18-32, and 34-47 depend from 22
one of claims 1, 17, and 33, and are rejected as being either anticipated by or 23
obvious in view of Kaminsky. For the same reasons we do not sustain the 24
rejection of claims 1, 17, and 33, we also do not sustain these rejections. 25
Appeal 2008-1791
Application 10/205,122

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CONCLUSIONS OF LAW 1
The Appellants did show that the Examiner erred in asserting that a 2
fulfillment of an open order in Kaminsky anticipates “issuing, in dependence 3
upon the [deferred purchase request], a purchase order to the vendor on a 4
date subsequent to the receipt date” as recited in independent claims 1, 17, 5
and 33. 6
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DECISION 8
The decision of the Examiner to reject claims 1-48 is reversed. 9
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REVERSED 11
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