Appeal No. 2005-2642
Reexamination Control No. 90/005,841
evidence developed below suggests that the most promising asset base
for PPA’s is short-term bonds hedged against unanticipated inflation with a
small position in a well-diversified portfolio of commodity futures contracts.
Id. at 5, 2d col. through page 6, 1st col. (footnotes omitted). The examiner explains his
reliance on Bodie as follows:
BODIE suggests a “purchasing power annuity” which is linked to the cost
of living (page 5, col. 2). It would have been obvious . . . at the time of the
invention to employ an index linked account as taught by MUKHERERJEE
et al. and MUSAMANNO et al. in conjunction with an annuity payout in
order to hedge retirement income against inflation, as suggested by the
explicit balancing of index-linked deposits with index[-]linked obligations
(page 50 of MUKH) using a ubiquitous and popular financial retirement
savings and payout format: annuities.
Final Action at 15 (underlining omitted). The examiner’s reliance on Bodie as disclosing
“a ‘purchasing power annuity’ which is linked to the cost of living (page 5, col. 2)” makes
it clear that he is relying on Bodie’s discussion of the desirability of implementing PPA’s
as annuities in the form of (unavailable) default-free government or corporate bonds
linked to some index of the cost of living. Appellant is therefore incorrect (Brief at 17-20;
Reply brief at 8) to treat the rejection as based on Bodie’s proposed PPA’s which rely
on a combination of short-term bonds and commodity futures contracts, which PPA’s
are not mentioned in the part of Bodie cited by the examiner: page 6, second column.
In fact, this error was pointed out by the examiner in responding to same argument in
appellant’s “Response to Office Action Dated July 25, 2001,” at 9. The examiner
stated: “[T]he part of BODIE relied upon is not the part Applicant has referenced. It
would have been obvious to revert to the prior art. Although BODIE claims to have a
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