Appeal No. 2001-0671
Application No. 09/129,088
Claims 1-8 stand rejected under 35 U.S.C. § 103. As evidence of obviousness,
the examiner offers Lu and Masch with regard to independent claims 1 and 5, adding
Schrader with regrd to claims 2-4, 6 and 7. The examiner cites Lu, Masch and Lewis
with regard to claim 8.
Reference is made to the briefs and answer for the respective positions of
appellant and the examiner.
OPINION
We REVERSE.
It is the examiner’s position, with respect to the independent claims, that Lu
discloses the claimed subject matter but for an explicit showing of “preselecting
constraints . . . [and] rate of delivery of commodities . . .” [Paper No. 4-page 4]. The
examiner then turns to Masch, holding that the recitation therein, of “constraints” [e.g.,
column 14, line 9 and lines 20-21], both “predetermined” and “discretionary,” suggests
the claimed “preselecting constraints . . . [and] rate of delivery of commodities . . .” The
examiner then concludes that it would have been obvious to modify Lu with the
teachings of Masch because it “would have provided a means to ‘eliminate or reduce
outcomes falling outside the boundary limits . . . [i.e.,] limiting the risky outcomes”
[Paper No. 4-page 5].
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