Appeal No. 2005-2642
Reexamination Control No. 90/005,841
third paragraph. Final Action at 15, ¶ 33. Since that page of Mukherjee mentions the
“cost-of-living index” but not the “consumer price index,” we assume that the examiner
is equating the two terms, a conclusion which strikes us a correct one. As appellant
does not contend otherwise or otherwise argue the merits of claim 33, we are affirming
the rejection on this ground. The examiner alternatively relies on the teachings of
Mukherjee, Musmanno, and Bodie as applied to claim 31 and further relies on Bodie’s
teaching (at 5, 2d col.) of basing a purchasing power annuity on “default-free bonds
linked to some index of the cost of living,” again apparently equating the cost-of-living
index to the claimed “consumer price index” without challenge by appellant. The
rejection of claim 33 is therefore also affirmed on this ground.
Claim 44, which depends on independent claim 36, calls for paying out the
deposit principal component “by a schedule over the term” and also paying out the
deposit accrual amount “by a schedule over the term.” The examiner construes this
claim as reciting the characteristic of an annuity, i.e., as requiring payout over a plurality
of iteration periods, Final Action at 16, ¶ 27, an interpretation neither urged nor
challenged by appellant. Nevertheless, we hold this interpretation to be unduly narrow
because the phrase “by a schedule over the term” is broad enough to read on a single,
lump sum payment at the end of the term, which is not how an annuity is paid out. This
broader construction is consistent with column 3, lines 44-45 of the ‘461 patent (“terms
may be scheduled to include only a single iteration”) and also from a comparison of
claim 1 (“means for paying the deposit principal component according to a second
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