Ex Parte Schweitzer et al

Patent Trial and Appeal BoardNov 13, 2012

10952668 (P.T.A.B. Nov. 13, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 10/952,668 09/28/2004 Michael Schweitzer 6741P004 9643 45062 7590 11/13/2012 SAP/BSTZ BLAKELY SOKOLOFF TAYLOR & ZAFMAN 1279 Oakmead Parkway Sunnyvale, CA 94085-4040 EXAMINER SINGH, GURKANWALJIT ART UNIT PAPER NUMBER 3624 MAIL DATE DELIVERY MODE 11/13/2012 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 MICHAEL SCHWEITZER, EDWARD W. HUBER, MARION S. MCDONALD, MICHAEL J. MONSON, LARRY M. NEWBANKS, GUENTHER J. BAERMANN, MICHAEL J. CZACH, ERIC P. EICH, HANS SCHMITZ, BRIAN R. TAYLOR, MARK FISHWICK, and RYAN G. MATTHEWS ____________ Appeal 2011-003283 Application 10/952,668 Technology Center 3600 ____________ Before: ANTON W. FETTING, BIBHU R. MOHANTY, and MICHAEL W. KIM, Administrative Patent Judges. KIM, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appeal 2011-003283 Application 10/952,668 2 In reply to our Decision on Appeal mailed August 28, 2012 (hereinafter “Dec.”), Appellants filed a Request for Rehearing on October 29, 2012 (hereinafter “Req.”). Appellants assert that “a database” is a physical structure that is not software per se (Req. 1-2). However, a database is just an array of data whose scope encompasses software per se, especially in view of the Specification which does not specify that database 601 is any physical structure (Fig. 6; para. [0040]). Neither the claims nor Specification narrow the scope to a physical instantiation. Appellants assert that any rounding that occurs in Kumar is for minimum size shipping quantity, and not for “efficient transportation characteristics,” as recited in independent claims 1, 6, and 16 (Req. 2-5). However, “efficient transportation characteristics” is not defined in either the claims or the Specification. Absent such a definition, “efficient transportation characteristics” is just a relative term where any result of rounding is “efficient.” To that end, rounding for minimum size shipping quantity, admitted by Appellants as being disclosed in Kumar, is “efficient.” Appellants assert that the Board ignores the term “pack stages” that appears in various claims (Req. 2-5). However, these arguments were not set forth in either the Appeal Brief or Reply Brief. “Arguments not raised in the briefs before the Board and evidence not previously relied upon in the briefs are not permitted in the request for rehearing except as permitted by paragraphs (b)(2) and (b)(3) of this section.” 37 C.F.R. § 41.79(b)(1). Furthermore, Appellants have not alleged, let alone shown, that the argument should be permitted by 37 C.F.R. § 41.79(b)(1)-(3). Appeal 2011-003283 Application 10/952,668 3 We grant Appellants’ Request for Rehearing insofar as we have addressed Appellants’ arguments as set forth above. In all other respects, the Request for Rehearing is DENIED. 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). DENIED hh