Ex Parte Rakesh et al

Patent Trial and Appeal Board

Sep 26, 2012

11139303 (P.T.A.B. Sep. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/139,303 05/27/2005 Ravi Rakesh 6741P071 3392
45062 7590 09/26/2012
SAP/BSTZ
BLAKELY SOKOLOFF TAYLOR & ZAFMAN
1279 Oakmead Parkway
Sunnyvale, CA 94085-4040
EXAMINER
MILLER, ALAN S
ART UNIT PAPER NUMBER
3624
MAIL DATE DELIVERY MODE
09/26/2012 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
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RAVI RAKESH, STEFAN MERKER, JUERGEN
KOENEMANN, STEFAN RESAG, and
JOCHEN STEINBACH
____________________

Appeal 2011-004780
Application 11/139,303
Technology Center 3600
____________________

Before JEFFREY B. ROBERTSON, DANIEL S. SONG, and
JOSIAH C. COCKS, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/139,303

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 1-3, 5, 6, 8-13, 15-17, 19, and 22. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

THE INVENTION
Appellants state that the invention relates generally to the field of data
processing systems, and particularly to a system and method for sourcing a
demand forecast within a supply chain management (“SCM”) system.
(Spec. Para. [0001].)
Claims 1 and 22, reproduced below, are illustrative of the claimed
subject matter:
1. A computer-implemented method comprising:
determining a demand forecast for a level in a supply
chain, the demand forecast identifying anticipated demand from
the level for a product over a specified time period;
determining total unfulfilled sales orders for the product
with delivery dates scheduled during the specified time period
for the level within the supply chain;
reducing the anticipated demand by the unfulfilled sales
order in a processing unit to generate an open forecast for the
level; and
sourcing different percentages of the open forecast from
different plants in the level based on supply chain material
and/or resource constraints.

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22. The method of claim 1 further comprising:
creating a dummy forecast order; and
consuming the dummy forecast order with an existing
sales order.
(Appeal Brief, Claims Appendix1 13, 15-16.)

THE REJECTION
I. The Examiner rejected claims 1-3, 5, 6, 8-13, 15-17, 19,
and 22 under 35 U.S.C. § 103(a) as unpatentable over
Kennedy et al. (US 6,167,380, issued
December 26, 2000) in view of Wilson et al.
(US 2002/0133387 A1, published September 19, 2002).
(Examiner’s Answer, dated November 8, 2010, “Ans.” 4-
10.)

ISSUES
Claims 1-3, 6, 8-11, 13, and 15-17
Regarding the method step in claim 1 of sourcing different
percentages of an open forecast from different plants, the Examiner found
that Kennedy discloses an open forecast because Kennedy teaches
generating a forecast request adjusted down by customer requests. (Ans. 5,
12.) The Examiner also found that Wilson discloses sourcing different
percentages from different locations because Wilson teaches a promising
engine that may first attempt to split an order between two or more
warehouses to fulfill an order that cannot be met by any one warehouse.
(Ans. 6, 13.) The Examiner concluded that it would have been obvious to
one of ordinary skill in the art to source the forecast requests of Kennedy by
splitting an order using the promising engine taught by Wilson because the

1 Appeal Brief filed August 16, 2010, hereinafter “App. Br.” and “Claims
App’x,” respectively.
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claimed method is merely a combination of old elements, and a skilled
artisan would have recognized that combining Kennedy and Wilson would
yield the predictable result of sourcing remaining forecast requests from
multiple sites if a request could not be met by one site. (Ans. 6, 13.)
Appellants argue that the Examiner improperly analogizes an order
fulfillment in Wilson to an open forecast, and that the two are not equivalent,
but are distinctly different concepts. (App. Br. 8.) Appellants argue that an
order fulfillment as used in Wilson, and as understood by the plain meaning
of the terms, is the attempted completion of an actual order, while an open
forecast relates to the anticipated demand for a product. (App. Br. 8.)
Appellants also argue that the warehouse disclosed in Wilson is not
analogous to a plant. (App. Br. 6-7.)

Claim 22
Regarding the recited creation and consumption of a dummy forecast
order, the Examiner found that Kennedy discloses that if specific products
are not available, a member of a distribution organization can check whether
it has sufficient available-to-promise (“ATP”) generic products, which
represent more generic demand. (Ans. 9-10.) The Examiner found that
Kennedy discloses that it is preferable to set up product allocations and ATP
for the generic products so that orders can consume ATP as needed from the
generic products. (Ans. 10.)
Appellants argue that dummy forecast orders are characterized in
Appellants’ Specification as forecasts that “are immediately consumed by
the existing sales orders thereby preventing a consumption of the sourced
forecast orders.” (App. Br. 10.) Appellants contend that while Kennedy
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discloses forecasting generic products, Kennedy does not disclose that any
additional forecast orders are added to its generic product forecasts to
prevent consumption of the sourced forecast orders. (App. Br. 11.)
In view of the contentions discussed supra, the dispositive issues on
appeal are:
(1) Whether the Examiner erred in concluding that Kennedy in view of
Wilson renders obvious claim 1, including the limitation “sourcing
different percentages of the open forecast from different plants”?
(2) Whether the Examiner erred in finding that Kennedy discloses
“creating a dummy forecast order; and consuming the dummy
forecast order with an existing sales order,” as recited in claim 22?

PRINCIPLES OF LAW
In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007), the Supreme
Court explained that “Section 103 forbids issuance of a patent when ‘the
differences between the subject matter sought to be patented and the prior art
are such that the subject matter as a whole would have been obvious at the
time the invention was made to a person having ordinary skill in the art to
which said subject matter pertains.”’ KSR, 550 U.S. at 406. “If a person of
ordinary skill can implement a predictable variation . . . §103 likely bars its
patentability.” KSR, 550 U.S. at 417.
“[T]he PTO must give claims their broadest reasonable construction
consistent with the Specification . . . . Therefore, we look to the
specification to see if it provides a definition for claim terms, but otherwise
apply a broad interpretation.” In re ICON Health and Fitness, Inc., 496 F.3d
1374, 1379 (Fed. Cir. 2007) (citation omitted). “Even when guidance is not
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provided in explicit definitional format, ‘the specification may define claim
terms by ‘implication’ such that the meaning may be ‘found in or
ascertained by a reading of the patent documents.’” Irdeto Access, Inc. v.
Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004).

FACTUAL FINDINGS (FF)
1. Kennedy discloses that “forecast consumption” involves forecast
requests that are generated by a forecast entry and thereafter
reduced by the actual requests by, or promises, to a customer.
(Col. 5, ll. 25-58; Col. 14, ll. 12-24.)
2. Kennedy discloses that “forecast consumption” is a standard
industry planning practice that plans for both the forecasted
demand and actual demand. (Col. 14, ll. 12-24.)
3. Kennedy discloses sites that represent organizational units that
may have the capacity and materials to produce or consume items.
(Col. 3, ll. 63-65.)
4. Wilson discloses a promising engine that is responsible for
receiving and responding to customer requests, reserving available
inventory for clients, and for directing one or more warehouses to
fulfill orders received from clients. (Para. [0008].)
5. Wilson discloses that if the primary warehouse is unable to fulfill
the request, the promising engine determines whether there are
additional warehouses associated with the primary warehouse.
(Para. [0051].)
6. Wilson discloses that the promising engine may first attempt to
split the order fulfillment between two or more warehouses, if
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necessary, to fulfill a request that cannot be met by any warehouse.
(Para. [0051].)

ANALYSIS
Issue One, Claims 1-3, 6, 8-11, 13, and 15-17
We are not persuaded by Appellants’ argument that the Examiner
improperly analogizes an order fulfillment in Wilson to an open forecast.
The Examiner relies on Kennedy to disclose an open forecast, while the
Examiner relies on Wilson to disclose sourcing different percentages of that
forecast. (Ans. 5-6, 12.)
Kennedy discloses reducing forecasts by actual requests. (FF 1.)
Thus, Kennedy informs one of ordinary skill in the art that open forecasts
can be generated. Further, Wilson discloses directing one or more
warehouses to fulfill customer orders by splitting those orders between two
or more warehouses. (FF 4-6.) Thus, Wilson informs one of ordinary skill
in the art that different percentages of customer requests can be sourced
from different locations. Both the open forecast of Kennedy and the
customer request of Wilson represent demand for goods, whether forecasted
demand in the case of Kennedy or actual demand in the case of Wilson. As
disclosed by Kennedy, it is standard industry practice to plan for both the
forecasted demand and actual demand. (FF 2.) One of ordinary skill in the
art would have understood from the teachings of Kennedy and Wilson that
demand can be sourced by multiple locations, such that it would have been
obvious to one of ordinary skill in the art to source the forecast requests of
Kennedy by splitting those requests by the methods taught in Wilson. A
skilled artisan would have recognized that such a combination would yield
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the predictable result of sourcing remaining forecast requests from multiple
sites if a request could not be met by one site.
We are additionally unpersuaded by Appellants’ argument that any
difference between the term “plant” as recited in claim 1, and “warehouse”
as disclosed in Wilson patentably distinguishes the claims on appeal. In this
regard, Kennedy discloses a supply chain management system that includes
generic sites that produce or consume items. (FF 3.) Thus, Kennedy
informs one of ordinary skill in the art that a forecast for production sites can
be modeled generically. While Wilson specifically discloses that orders may
be split between different warehouses (FF 4), one of ordinary skill in the art
would have understood the order splitting concept in Wilson could be
applied to any facility in the supply chain that produces or stores goods. As
a result, notwithstanding the fact that plants often include a warehouse
therein for storage of goods produced therein, we agree with the Examiner
(Ans. 12) that, regardless of any art-recognized distinctions between a plant
and a warehouse, one of ordinary skill in the art would have understood that
it would have been obvious to use the combined method of Kennedy and
Wilson to control items sourced from any location.
Accordingly, we agree with the Examiner that Kennedy in view of
Wilson renders claim 1 obvious, and we sustain the rejection of claim 1.
Because Appellants argue similarly with respect to claims 2-3, 6, 8-11, 13,
and 15-17 (App. Br. 7), we sustain the rejection of those claims.

Issue Two, Claim 22
We agree with Appellants that one of ordinary skill in the art would
have understood “dummy forecast orders” in the manner defined in the
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specification as orders that “are immediately consumed by the existing sales
orders thereby preventing a consumption of the sourced forecast orders”
(Spec. Para. [0026]); see Irdeto Access, 383 F.3d at 1300. We further agree
with Appellants that the generic forecasts of Kennedy are not dummy
forecast orders. The generic forecasts of goods in Kennedy relate to the
forecast of generic products and do not involve the creation of forecast
orders that are created and are immediately consumed by existing sales
orders of products, generic, or otherwise. (Col. 12, l. 45 – Col. 13, l. 25.)
The Examiner does not offer any other sufficient rationale to remedy
the above deficiency. Accordingly, the Examiner has not shown that claim
22 would have been obvious to one of ordinary skill in the art at the time of
the invention.

Claims 5, 12, and 19
Appellants’ arguments with respect to these claims are directed to the
limitation “by adding the open forecast to the product allocation on a per
plant basis.” (App. Br. 9-10.)
However, as the Examiner points out, this limitation first appeared in
an amendment filed November 30, 2009, in which claims 5, 12, and 19 were
marked as “(Previously Presented),” and the limitation was not underlined or
in any way marked as amended. (Ans. 14-15.) In an Advisory Action, dated
May 4, 2010, the Examiner stated that “Examiner notes that NO
AMENDMENT to claims 5, 12 and 19 were made in the Amendments filed
on 11/30/2009, as they were marked as (Originally Presented).” In the
Answer, the Examiner stated that “Examiner first notes that the features in
the claims that are being argued by Appellant, specifically ‘by adding the
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open forecast to the product allocation on a per plant basis’ were never
examined since they were never properly introduced as amended claims.”
(Ans. 14) (citing MPEP 714; 37 C.F.R. § 1.121).
Accordingly, the claim limitations argued by Appellants as the basis
for patentability were not entered by the Examiner and are not present in the
currently pending versions of claims 5, 12, and 19 before us on appeal.2
Therefore, we sustain the rejection of claims 5, 12, and 19.

CONCLUSIONS
The Examiner did not err in concluding that Kennedy in view of
Wilson renders obvious claim 1, including the limitation “sourcing different
percentages of the open forecast from different plants.”
Appellants have sufficiently established that the Examiner erred in
finding that Kennedy discloses “creating a dummy forecast order; and
consuming the dummy forecast order with an existing sales order,” as
recited in claim 22.

DECISION
We affirm the Examiner’s rejection of claims 1-3, 5, 6, 8-13, 15-17,
and 19 under 35 U.S.C. § 103(a) as unpatentable over Kennedy in view of
Wilson.

2 We further note that this issue is a petitionable matter and not reviewable
by the Board which reviews decisions by a primary examiner to reject, or
not reject, claims. See In re Mindick, 371 F.2d 892, 894 (CCPA 1967)
(issues pertaining to entry of amendments are reviewable by petition under
37 C.F.R. § 1.181 and are not within the jurisdiction of the Board).

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We reverse the Examiner’s rejection of claim 22 under
35 U.S.C. § 103(a) as unpatentable over Kennedy in view of Wilson.

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-IN PART

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