Appeal Number: 2006-1574
Application Number: 09/903,177
The examiner argues that Walkey actually provides a type of gas based on the data from the
vehicle, rather than having the customer select the gas. We note that Walkey does not go this
far. The portion that the examiner points to [See Answer at p. 9 and Walkey col. 5 lines 21-23]
does indeed interrogate the vehicle through a data link for fuel type, but says nothing regarding
the use of that data for automatically selecting fuel type. However, we note that the claim
limitation is sufficiently broad that the claim limitation is met so long as the data is in some
manner considered in determining the unit price. We note that Walkey does prevent certain
grades of fuel from being dispensed, precluding unit costs associated with those grades and
allowing unit costs of allowed grades. [See col. 5 lines 3-6]. While this may not be the most
direct connection between the data and the unit price, we note that this is well within the very
broad ambit of “using said data.” Clearly the data is used to restrict the scope of available fuels
and the selection among those remaining results in a unit price, so the data is indeed “used” in
the determination of unit price, i.e. it is used in the flow of logic that any automated procedure
arriving at a unit price would follow. As to the argument regarding specific vehicle category, we
find this to be unpersuasive for the same reasons we stated above. Therefore, we find the
appellant's arguments to be unpersuasive.
Accordingly we sustain the examiner's rejection of claims 22 and 28 through 33 rejected
under 35 U.S.C. § 102(b) as anticipated by Walkey.
Claims 22 and 33 through 35 rejected under 35 U.S.C. § 102(e) as anticipated by Marion.
We note that the appellant argues these claims as a group. Accordingly, we select claim 22
as representative of the group. Marion describes the use of a vehicle transponder to transmit data
regarding fuel and other purchases and to qualify a purchase for discount.
The appellant argues that the claim limitation “vehicle specific data” means data that
identifies what particular category the particular vehicle is in. The appellant argues that this
definition precludes a measurement of gas tank ullage from being an embodiment, and that the
per unit cost associated with ullage is an estimate. [See Brief at p. 14-16]. We note that ullage
refers to the volume of the tank which can receive additional fuel. [See Marion Para. 230]. The
appellant again argues that Marion does not refer to a specific vehicle type.
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