Appeal No. 2006-1874
Reexamination Control No. 90/006,351
was not solved by any system prior to the invention of the patent in
reexamination, and certainly the cited Marks and Gold certificate references do
not solve this problem.
Additionally, the Examiner’s rejection also ignores the commercial
success of the Patent Owner’s working commercial payment system accessible
via an online website found at http://www.goldmoney.com/, which has been in
continuous operation since February 2001 and as of April 30, 2004 held
1,255,672 grams of gold on deposit, representing over US $ 16 million of asset-
based electronic currency in circulation. The amount of currency in circulation in
this system has been increasing since the date the Declaration [declaration of
James J. Tuk dated April 30, 2004] was submitted and its commercial success
continues to grow. Due recognition of the Patentee’s commercial success, and the
long felt but unsolved needs for a commercial payments system which was not
subject to the described types of payment risk also mandate a conclusion of non-
obviousness.
The declaration of James J. Turk, a co-inventor, dated April 30, 2004, and submitted during
reexamination of the patent at issue, refers to a 1974 failure of a small foreign exchange trading
bank in Germany, Bankhaus Herstatt, a 1990 failure of Drexel Burnham Lambert, a 1991 failure
of the Bank of Credit and Commerce International (BCCI), and a 1995 failure of the Barings
Bank. Four bank failures in a period of approximately thirty (30) years prior to filing of the
application does not seem to present a substantial problem. Moreover, the patentee provides no
factual detail about the operation and failure of each of the referenced banks. It is not known
whether the banks failed simply because of poor investments within the range of permissible
investments established by rules governing the operation of those banks or because of intentional
or criminal mischief in violation of the applicable rules. If it were the latter, the bank failures are
not pertinent, for even the patentee’s invention cannot guard against intentional or criminal
mischief. For instance, despite all operating procedures to the contrary, personnel running the
secure facility for storing the commodity may nonetheless still make use of the commodity and
subject depositors to a payment risk. Note further that the declaration of James J. Turk refers to
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