Ex Parte GUPTE et al

Patent Trial and Appeal Board

Sep 17, 2018

13276739 (P.T.A.B. Sep. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/276,739 10/19/2011
74739 7590 09/19/2018
Potomac Law Group, PLLC (Oracle International)
8229 Boone Boulevard
Suite 430
Vienna, VA 22182
Manish GUPTE
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2011-0 l 49USO 1 3474
EXAMINER
ROTARU, OCTAVIAN
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
09/19/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents@potomaclaw.com
bgoldsmith@potomaclaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MANISH GUPTE and
PETER GAIDAREV
Appeal2016-006784 1
Application 13/276,7392
Technology Center 3600
Before PHILIP J. HOFFMAN, TARA L. HUTCHINGS, and
MATTHEW S. MEYERS, Administrative Patent Judges
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-8, 14--21, and 27-33. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("Appeal Br.," filed
October 27, 2015), Appellants' Reply Brief ("Reply Br.," filed June 27,
2016), the Examiner's Answer ("Ans.," mailed April 25, 2016), and the
Final Office Action ("Final Act.," mailed May 28, 2015).
2 Appellants identify Oracle International Corporation as the real party in
interest (Appeal Br. 2).
Appeal 2016-006784
Application 13/276,739
CLAIMED INVENTION
Appellants' claims are "directed generally to a computer system for
determining product pricing, and in particular to a computer system that
determines optimized product pricing markdowns" (Spec. ,r 1 ).
Claims 1, 14, and 2 8 are the independent claims on appeal. Claim 1,
reproduced below with added bracketed notations, is illustrative of the
subject matter on appeal:
1. A non-transitory computer readable medium having
instructions stored thereon that, when executed by a processor,
cause the processor to determine a markdown pricing sequence
for a product, the determination comprising:
[a] receive a sequence of future prices and corresponding
time periods, wherein each price of the future prices is a same
price or a reduced price as compared to another price from a
previous time period, wherein the future prices are based at least
on business rules;
[b] for each time period in the sequence, determine a
reference price for the product at its corresponding time period,
wherein the reference price varies based on its corresponding
time period;
[ c] for the each price in the sequence, determine an
increase in revenue using a demand model, wherein the demand
model comprises a price elasticity variable that uses the reference
price at its corresponding time period instead of a full price;
[ d] determine an estimate of revenue for the sequence of
future prices; and
[ e] determine when the sequence of future prices is an
optimized sequence based on the estimate of revenue by
comparing, the sequence of prices, to additional estimates of the
revenue for additional sequences of the future prices.
REJECTIONS
Claims 1-8, 14--21, and 27-33 stand rejected under 35 U.S.C. § 101
as being directed to non-statutory subject matter.
2
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Claims 1, 2, 4, 8, 14, 15, 17, 21, 28, 29, 31, and 33 are rejected under
35 U.S.C. § I03(a) as unpatentable over Sanli (US 8,000,996 Bl, iss.
Aug. 16, 2011) and Ouimet (US 2004/00494700 Al, pub. Mar. 11, 2004).
Claims 3, 7, 16, 20, 27, 30, and 32 stand rejected under 35 U.S.C.
§ I03(a) as unpatentable over Sanli, Ouimet, and Kalyan T. Talluri, et al.
The Theory and Practice of Revenue Management, Springer, 17 6 (2005)
(hereinafter, "Talluri").
Claims 5, 6, 18, and 19 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Sanli, Ouimet, and Woo (US 2003/0229502 Al, pub.
Dec. 11, 2003).
ANALYSIS
Non-statutory subject matter
Independent claims 1, 14, and 28, and dependent claims 2---8, 15-21, 27,
and 29-33
Appellants argue claims 1-8, 14--21, and 27-33 as a group (see
Appeal Br. 3-8; Reply Br. 2-3). We select claim 1 as representative.
Claims 2-8, 14--21, and 2 7-3 3 fall with independent claim 1. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347
(2014 ), identifies a two-step framework for determining whether claimed
subject matter is judicially-excepted from patent eligibility under § 101.
According to Alice step one, "[ w ]e must first determine whether the claims
at issue are directed to a patent-ineligible concept," such as an abstract idea.
Alice, 134 S. Ct. at 2355.
The "directed to" inquiry []cannot simply ask whether the claims
involve a patent-ineligible concept, because essentially every
routinely patent-eligible claim involving physical products and
actions involves a law of nature and/or natural phenomenon-
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after all, they take place in the physical world. See Mayo, 132 S.
Ct. at 1293 ("For all inventions at some level embody, use,
reflect, rest upon, or apply laws of nature, natural phenomena, or
abstract ideas.") Rather, the "directed to" inquiry applies a stage-
one filter to claims, considered in light of the specification, based
on whether "their character as a whole is directed to excluded
subject matter." Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015); see Genetic Techs. Ltd. v.
Merial L.L.C., 818 F.3d 1369, 1375, 2016 WL 1393573, at *5
(Fed. Cir. 2016) (inquiring into "the focus of the claimed advance
over the prior art").
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). "The
'abstract idea' step of the inquiry calls upon us to look at the 'focus of the
claimed advance over the prior art' to determine if the claim's 'character as a
whole' is directed to excluded subject matter." Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (citing Elec. Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); Enfish,
LLC, 822 F.3d at 1335.
In rejecting the claims under 35 U.S.C. § 101, the Examiner
determined that the claims, considered as a whole, are directed to "an
abstract idea of markdown pricing, a fundamental economic practice[,]
which is old, known and customary to most retailers" (Final Act. 13; see
also Ans. 5-6) without additional elements that transform it into a patent-
eligible application of that idea (see Final Act. 3-7, 13-14; Ans. 4--12). The
Examiner also determined that the claimed steps are "merely representative
of a mental process," (Ans. 5 (emphasis omitted); see also Final Act. 6).
According to the Examiner, the claims "fall[] well-within the broadly
defined 'fundamental economic practice' as describing 'concepts relating to
the economy and commerce' 'in the sense of being foundational or basic,
and not in the sense of necessarily being old or well-known"' (Ans. 5---6
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( emphasis omitted) ( citing Alice and para. III, section A "July 2015 Update:
Subject Matter Eligibility" to 2014 Interim Guidance on Subject Matter
Eligibility (2014 IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014)).
Appellants argue that the Examiner's determination that the claims are
directed to "markdown pricing" ignores and over-generalizes the claims
(Appeal Br. 3). Instead, Appellants take the position that "the claims are
more specifically directed to the abstract idea of determining a markdown
pricing sequence for a product using a demand model that incorporates a
price elasticity variable that uses a reference price" (Appeal Br. 3--4 ( citing
claim 1) ), and in the instant case, "there are no similarities" to "abstract
ideas identified by the courts" (Appeal Br. 4).
We are not persuaded of Examiner error by Appellants' argument that
independent claim 1, considered as a whole, is not broadly directed to
"markdown pricing" (see Final Act. 13). In making this determination, we
note that the Specification discloses the present invention "is directed
generally to a computer system for determining product pricing, and in
particular to a computer system that determines optimized product pricing
markdowns" (Spec. ,II). According to the Specification,
[ o ]ne embodiment is a system that determines a markdown
pricing sequence for a product. The system receives a sequence
of future prices as a function of time for the product based at least
on business rules. For each price in the sequence, the system
determines a reference price for the product, and then determines
an increase in revenue using a demand model.
(Spec. ,r 4). And, taking independent claim 1 as representative, the claimed
subject matter is generally directed to "receiv[ing] a sequence of future
prices and corresponding time periods," "determin[ing] a reference price for
the product at its corresponding time period," "determin[ing] an increase in
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revenue using a demand model, wherein ... a price elasticity variable ...
uses the reference price ... instead of a full price," "determin[ing] an
estimate of revenue ... of future prices," and "determin[ ing] ... an
optimized sequence ... by comparing, the sequence of prices, to additional
estimates of revenue." Thus, we agree with the Examiner that claim 1 is
directed generally towards "markdown pricing" (see Final Act. 13), and is
similar to certain fundamental economic and conventional business practices
that our reviewing courts have found patent ineligible. For example, in OIP
Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015), the
instant claims recite "no more than an abstract idea coupled with routine
data-gathering steps and conventional computer activity."
In OIP Technologies, the method claims at issue were directed to
price optimization in an e-commerce environment by testing a plurality of
prices, gathering statistics about customer reaction, estimating outcomes,
and automatically selecting and offering a new price based on the estimated
outcome (id. at 1362). The Federal Circuit held that the claims were
directed to an abstract idea, explaining that "[ a ]t best, the claims describe the
automation of the fundamental economic concept of offer-based price
optimization through the use of generic-computer functions" (id. at 1363).
Furthermore, "relying on a computer to perform routine tasks more quickly
or more accurately is insufficient to render a claim patent eligible" (id.). See
also Alice, 134 S. Ct. at 2359 ("use of a computer to create electronic
records, track multiple transactions, and issue simultaneous instructions'' is
not an inventive concept); Bancorp /·/ervs., LL C v. Sun L[fe Assur. Co. qf
Can. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (a computer "employed
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only for its most basic function, ... does not impose meaningful limits on
the scope of those claims"); cf DDR Holdings, LLC v. Hotels.cmn, LP,
773 F.3d 1245, 1258-----59 (Fed. Cir. 2014) (finding a computer-implemented
method patent eligible where the claims recite a specific manipulation of a
general-purpose computer such that the claims do not rely on a "computer
network operating in its normal, expected manner."). See also Kray IP
Holdings, LLC v. Safeway, Inc., 107 F.Supp.3d 677, 690 (E.D. Tex. 2015),
aff'd, 639 F. App'x 637 (Fed. Cir. 2016) ("Incentive award programs
designed to encourage sales of products and services have been familiar
aspects of marketing for many years, as the [7,054,830] patent itself
acknowledges.").
Furthermore, as in Alice, we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski v. Kappas, 561 U.S. 593, 609--
10 (2010) and the concept of "markdown pricing" at issue here. Both are
squarely within the realm of "abstract ideas" as the Court has used that term.
See Alice, 134 S. Ct. at 2357. We also note that claims involving data
collection, analysis, and display are directed to an abstract idea. See Elec.
Power, 830 F.3d at 1353 (holding that "collecting information, analyzing it,
and displaying certain results of the collection and analysis" are "a familiar
class of claims 'directed to' a patent ineligible concept"); see also In re TL!
Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016). Here, independent claim 1, unlike the claims found non-abstract in
prior cases, uses generic computer technology (see, e.g., Spec. ,r,r 25-28) to
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receive information, i.e., "receive ... future prices and corresponding time
periods," classify, i.e., "determine a reference price ... at its corresponding
time," and analyze information, i.e., "determine an increase in revenue,"
"determine an estimate of revenue for the sequence of future prices,"
"determine when the sequence of future prices is an optimized sequence
based on the estimate of revenue by comparing," and does not recite an
improvement to a particular computer technology. See, e.g., McRO, Inc. v.
Bandai Namco Games Am., Inc., 837 F.3d 1299, 1314--15 (Fed. Cir. 2016)
1314--15 (finding claims not abstract because they "focused on a specific
asserted improvement in computer animation."). Thus, we agree with the
Examiner that independent claim 1 is directed to a patent-ineligible abstract
idea.
Appellants argue that claim 1 recites "significantly more" than an
abstract idea because
[ d]etermining the reference prices, and calculating a demand
model that substitutes the reference price elevates the present
claims well beyond the mere concept of simply retrieving and
combining data using a computer. Further, the use of a computer
to generate reference prices and utilizing a demand model is
clearly a technical solution to the problem of determining
"markdown pricing", and is not a solution that can be performed
manually or using routine computer data storage and
mathematical operations.
(Appeal Br. 6). We are not persuaded by Appellants' argument.
Here, as the Examiner points out, Appellants' "computer structure
(i.e. 'processor', 'memory' etc.) is at best generic" (Ans. 7 (citing Spec.
,r,r 25, 26[], 32); see also Final Act. 14). We agree with the Examiner and
considering each of the claim elements in tum, we find them all to be
directed to well-understood, routine, conventional activities previously
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known to the industry (see Ans. 6-8). And, when viewed as a whole, the
computer components ( e.g., "a processor" and "memory") of Appellants'
system components add nothing that is not already present when the claim
elements are considered separately. Appellants do not adequately show how
the claimed steps are technically done such that they are not routine,
conventional functions of a generic computer. See Intellectual Ventures I
LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015)
("Rather, the 'interactive interface' simply describes a generic web server
with attendant software, tasked with providing web pages to and
communicating with the user's computer."). Furthermore, other than stating
that "the use of a computer to generate reference prices and utilizing a
demand model is clearly a technical solution to the problem of determining
'markdown pricing', and is not a solution that can be performed manually or
using routine computer data storage and mathematical operations" (Appeal
Br. 6), Appellants do not adequately explain why determining "markdown
pricing" cannot be "performed manually or using routine computer data
storage and mathematical operations" (cf Ans. 7 (citing Appeal Br. 6)).
Additionally, Appellants' claims do not purport to improve the
functioning of the system itself. Nor do they effect an improvement in any
other technology or technical field. Instead, the claims amount to nothing
significantly more than an instruction to implement the abstract idea of
determining "markdown pricing" (Final Act. 13; see also Ans. 5---6) using
generic computer components (see Ans. 7 (citing Spec. ,r,r 25, 26, 32)). This
is insufficient to transform an abstract idea into a patent-eligible invention.
"[T]he mere recitation of a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention. Stating an abstract
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idea "while adding the words 'apply it"' is not enough for patent eligibility."
Alice, 134 S. Ct. at 2358.
According to the Specification, "[p ]rocessor 32 may be any type of
general or specific purpose processor" (Spec. ,r 25) and the pricing
module 16 may be performed by "any combination of hardware and
software" (Spec. ,r 32). The instant claims do not, for example, purport to
improve the functioning of the computer itself or involve a solution
necessarily rooted in computer technology to overcome a problem specific
to the realm of computer networks, but instead embody the use of generic
computer components in a conventional manner to perform an abstract idea,
which, as the Court in DDR Holdings explained, is not patent eligible. DDR
Holdings, 773 F.3d at 1256 ("[T]hese claims in substance were directed to
nothing more than the performance of an abstract business practice on the
Internet or using a conventional computer. Such claims are not patent-
eligible."). Nor do the claims effect an improvement in any other
technology or technical field. Instead, the claims at issue amount to nothing
significantly more than an instruction to apply the abstract idea of
"markdown pricing" (see Final Act. 13; see also Ans. 5---6), which under our
precedents, is not enough to transform an abstract idea into a patent-eligible
invention. See Alice, 134 S. Ct. at 2360.
Furthermore, unlike the problem in DDR Holdings, the instant
problem is not "a problem specifically arising in the realm of computer
networks" (DDR Holdings, 773 F.3d at 1257 (emphasis added)), because the
claimed steps of "receiv[ing] a sequence of future prices and corresponding
time periods," "determin[ing] a reference price for the product at its
corresponding time period," "determin[ing] an increase in revenue using a
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demand model, wherein ... a price elasticity variable ... uses the reference
price ... instead of a full price," "determin[ing] an estimate of revenue ...
of future prices," and "determin[ing] ... an optimized sequence ... by
comparing, the sequence of prices, to additional estimates of revenue" can
be performed manually by a retailer of a product as "an essential part of the
merchandise item lifecycle pricing" (Spec. ,r 2). Therefore, the claims
merely recite the performance of some business practice known from the
pre-Internet world, namely how much of a markdown to take, along with the
requirement to perform it using the computer. Additionally, we generally
agree with the Examiner that the Appellants are merely automating routine
activities with the use of generic computing technology (see Ans. 7-8; see
also Spec. ,r,r 25, 26, 32).
Appellants argue that the present claims "do not attempt to preempt
every application of the alleged abstract idea of 'markdown pricing"' (see
Appeal Br. 6). However,
[ t ]he Supreme Court has made clear that the principle of
preemption is the basis for the judicial exceptions to
patentability. Alice, 134 S. Ct. at 2354 ("We have described the
concern that drives this exclusionary principle as one of pre-
emption[.]"). For this reason, questions on preemption are
inherent in and resolved by the § 101 analysis.
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed.
Cir. 2015). Preemption concerns are, thus, fully addressed and rendered
moot where a claim is determined to disclose patent ineligible subject matter
under the two-part framework described in Mayo and Alice. Although
"preemption may signal patent ineligible subject matter, the absence of
complete preemption does not demonstrate patent eligibility" (id.). A
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specific abstract idea is still an abstract idea and is not eligible for patent
protection without significantly more recited in the claim.
Appellants further argue that "the recited claims provide
improvements to the functioning of the computer" (Appeal Br. 7). More
particularly, Appellants argue that the Specification discloses:
[ e ]mbodiments, by using a reference price, cause the optimizer
to delay 'jumping" to give a markdown after no-touch or
inactivity, which results in a more stable sequence of
markdowns and an avoidance of unnecessary early and deep
markdowns. In general, embodiments cause "higher value"
consumers to pay more, and "lower value" consumers to pay less.
(Id. (citing Spec. ,r 46)). Although, we acknowledge Appellants' contention
that the pending claims result in "a more stable sequence of markdowns
and an avoidance of unnecessary early and deep markdowns," (Appeal
Br. 7), as we noted above, "relying on a computer to perform routine tasks
more quickly or more accurately is insufficient to render a claim patent
eligible." See OIP Technologies, 788 F.3d at 1363.
Appellants last argue that the Examiner did not consider the claim
elements in combination, i.e., "how one element uses an input from another
element in an innovative manner" (Appeal Br. 8). However, as the
Examiner points out, "all claimed elements were carefully considered as a
whole or in combination (see Final Office Action page 14 ,r 2), yet they still
did not amount to significantly more than the abstract idea" (Ans. 11 ). Here,
we agree with the Examiner that the claim elements, considered in
combination, use generic computer components to perform the abstract idea
of calculating markdown pricing. As such, the claims amount to no more
than merely "relying on a computer to perform routine tasks more quickly or
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more accurately," which as we noted above, is "insufficient to render [the]
claim[s] patent eligible." See OIP Technologies, 788 F.3d at 1363.
In view of the foregoing, we sustain the Examiner's rejection under
35 U.S.C. § 101 of independent claim 1, and claims 2-8, 14--21, and 27-33,
which fall with independent claim 1.
Obviousness
Independent claims 1, 14, and 28 and dependent claims 2---8, 15-21, 27,
and 29-33
We are not persuaded by Appellants' argument that the Examiner
erred in rejecting independent claims 1, 14, and 28 under 35 U.S.C. § 103(a)
because the combination of Sanli and Ouimet does not disclose or suggest
using a demand model that uses reference pricing for elasticity instead of
using the full price to determine optimized markdown pricing as called for
by independent claim 1, and similarly called for by independent claims 14
and 28 (see Appeal Br. 9-11; see also Reply Br. 4).
Instead, we agree with, and adopt, the Examiner's findings and
rationales as our own (see Final Act. 8-12, 15-22 (citing Sanli, col. 4, 11. 61-
67; col. 5, 11. 1--43, 50-66; col. 9, 11. 10-24; col. 14, 11. 30, 37--40; col. 19,
11. 9-22, 35---64; Figs. 4, 7-11, 14--15; Ouimet ,r,r 28-30, 49, 46--47, 55-59,
Figs. 2, 6); see also Reply Br. 13-16). We add the following discussion for
emphasis.
Sanli relates generally to a markdown optimization system for
inventory, "and more specifically to computer-implemented systems and
methods for optimizing a clearance plan for an item or items for sale" (Sanli,
col. 1, 11. 14--17). Sanli discloses that "users 32 can interact with a
markdown optimization system 34 to generate markdown plans ... designed
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to optimize revenue, margin, and inventory targets for the items covered by
the markdown plan" (id. at col. 2, 11. 26-31 ). Sanli further discloses that
"markdowns are not cumulative from week to week," i.e., "the total
percentage markdown for a given week from the current price at the
beginning of the analytical period" (id. at col. 9, 11. 10-24, see also id. at
Figs. 4, 7).
Ouimet is directed to a system "for mathematically modeling and
controlling strategic objectives in enterprise planning models" (Ouimet ,r 3).
Ouimet discloses that "[ r ]eference price parameter, 100 is a particularly
desirable form of a baseline price that achieves improved accuracy in
modeling the prices that customers expect to pay for the products of set 86"
(id. ,r 52). Ouimet further discloses how a reference price can be calculated
to include calculation of a reference price at time period "t" and reference
price subsequent to a previous time period "t-1" (id. ,r,r 29-55).
Appellants argue that that the combination of Sanli and Ouimet fails
to disclose or suggest "determin[ing] optimized markdown pricing" because
"[t]here is absolutely no suggestion or motivation in Sanli for changing the
elasticity calculation" (Appeal Br. 10; see also Reply Br. 4). Appellants
acknowledge that "Ouimet arguably discloses the concept of reference
pricing," but argue that "similar to Sanli, there is no disclosure, need, or
motivation in Ouimet of using a demand model that uses reference pricing
for elasticity, instead of using the full price, to determine optimized
markdown pricing" (Appeal Br. 10; see also Reply Br. 4). We cannot agree.
In making this determination, we note that the Supreme Court has
made clear that when considering obviousness "the analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
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claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ" (see KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398,418 (2007)). And to the extent Appellants seek
an explicit suggestion or motivation in the reference itself, this is not the law
(see id. at 418). We find that the Examiner has provided an "articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness" (see id. (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)). Here, the Examiner takes the position
[i]t would have been obvious to one skilled in the art, at the time
of the invention, to modify Sanli' s method / system / medium to
include "reference price" in view of Ouimet in order to enhance
I configure Sanli's method/ system/ medium with capabilities
to tangentially model downward-sloping demand with respect to
prices and corresponding demanded quantities in order to find
the best demand curve that fits the historical data ( see Ouimet
if [0049] & Fig. 6).
(Final Act. 11 (emphasis omitted)). The Examiner further reasons that "[i]n
such demand model, Ouimet would further utilize complex, mathematical
configurations of the demand model such as likelihood function
maximization, Chi-squared curve-fitting, as well as multidimensional,
nonlinear or discontinuous equations for a more rigorous price-demand
model (see Ouimet ,r [0046], ,r [0047] last sentence & MPEP 2143 G)" (Id.
at 11-12). The Examiner also notes
the claimed invention is merely a combination of old elements,
namely, the calculation of a total revenue increase all mark-
downed prices in the proposed sequence of future prices as taught
by Sanli with Ouimet's more granular calculation of an increase
in revenue, at each step or iterative to each price in the sequence
of future prices.
(Final Act. 12).
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We note that Appellants' argument does not address whether the
modification described by the Examiner is more than the predictable use of
prior art elements according to their established functions nor do they
specifically mention or contest the substance of the Examiner's rationale, but
rather only generally asserts that there is no suggestion in either Sanli or
Ouimet for "a demand model that uses reference pricing for elasticity,
instead of using the full price, to determine optimized markdown pricing"
(Reply Br. 4). Therefore, in the absence of specific, technical arguments as
to why the motivation is insufficient, i.e., why one of ordinary skill in the art
would not recognize "the results of calculating separate revenue increases
for each proposed mark-downed price in the sequence of future prices
instead of a total, lump increase of all of said each prices price" (see Final
Act. 12), and/or why the modification described by the Examiner is more
than the predictable use of prior art elements according to their established
functions, we find Appellants' arguments to be unpersuasive.
In view of the foregoing, we sustain the Examiner's rejection of
independent claims 1, 14, and 28 under 35 U.S.C. § 103(a). We also sustain
the Examiner's rejections of dependent claims 2-8, 15-21, 27, and 29-33,
which are not argued separately. 3
3 We acknowledge Appellants' reference to dependent claims 4--7 (see
Appeal Br. 10-11). However, the mere reference to claims do not rise to the
level of a separate argument for patentability. See In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) ("more substantive arguments in an appeal brief
[are required] than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.").
16
Appeal 2016-006784
Application 13/276,739
DECISION
The Examiner's rejection of claims 1-8, 14--21, and 27-33 under 35
U.S.C. § 101 is affirmed.
The Examiner's rejections of claims 1-8, 14--21, and 27-33 under
35 U.S.C. § 103(a) are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
17