Appeal No. 2006-1179 Παγε 7
Application No. 10/242,532
not as such a claim does not provide sufficient metes and bounds
that would allow one of ordinary skill to determine whether or
not a patented invention is being infringed upon.”
Appellants assert (reply brief, page 2) that
These elements are not optional. In the logic of a
method carried out according to claim 41, such a method
tests (provided by the use of an “if” statement) to see
if the conditions are met before terminating the
auction. The fact that the condition may not be met
from time to time does not mean that the condition
recited in the claim is optional or optional language,
because the method, as recited in the claim, still
requires testing for the condition.
From our review of independent claims 41 and 53, we find
that determining step requires a determination of whether the
relative price of the pre-defined relative indication (PDI)
satisfies the price of the received order. If the price is met,
the executing step is carried out (if the quantity also meets the
order). If it is determined that the price does not meet the
price set in the order, then the executing step is not carried
out. As a result of this claim construction, we find that an
artisan would have readily understood the metes and bounds of the
claim. Independent claim 53 contains similar language.
The examiner additionally asserts (answer, page 5) that the
term “immediately,” found in claims 43, 44, 46, 48, 51, 52, and
62, is indefinite because the term is not defined in the claim,
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