Appeal Number: 2006-1514
Application Number: 09/950,526
Claims 9 and 12 through 25 stand rejected under 35 U.S.C. § 103 as obvious over Abraham.
The rejection of claims 1 through 13 under 35 U.S.C. § 101 has been withdrawn by the
examiner. [See Answer at p. 2].
OPINION
In reaching our decision in this appeal, we have given careful consideration to appellant’s
specification and claims, to the applied prior art reference, and to the respective positions
articulated by appellant and the examiner. As a consequence of our review, we make the
determinations that follow.
Claims 1 through 8, 10, and 11 rejected under 35 U.S.C. § 102(b) as anticipated by Abraham.
We note that the appellant argues these claims as a group. Accordingly, we select claim 1 as
representative of the group.
The appellant argues that Abraham fails to describe the two claim limitations of “consumer
purchasing characteristics representing a behavior of consumers with respect to said product,
said consumer purchasing characteristics including pantry loading” and “modifying said original
baseline in response to said consumer purchasing characteristics and said promotion
information.” The appellant goes on to argue that these limitations are long term effects, and
Abraham explicitly ignores long term effects. The appellant then points out that the term
“cannibalization” used in Abraham is not pantry loading. The appellant then argues that
Abraham fails to describe modifying the original baseline based on customer purchasing
characteristics and promotion information. [See Brief at p. 10-12].
The examiner responds that cannibalization is based on the same concept as pantry loading,
because a consumer purchases more goods than normal when goods are placed on sale. The
examiner points out the following excerpt from Abraham to support this argument:
[s]ome of the incremental sales during the short term may be accounted for by
purchase acceleration of loyal users who purchased earlier or a larger quantity
than they normally would have. This purchase acceleration phenomenon causes
cannibalization of future sales of the brand in the same store or possibly in other
stores and needs to be subtracted from short-term incremental sales to get long-
term incremental volume. [See Abraham p. 250].
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