Appeal 2006-2109
Application 10/680,678
1 meal are construed according to their usual and customary meaning of meals, that
2 being where one is larger in terms of overall volume than the other.
3 The Examiner finds that a meal without a beverage is a reduced portion meal of
4 a meal with a beverage, and that Helbling sells a meal without a beverage. The
5 Examiner treats Helbling’s offer of a promotional beverage as a related, but
6 separate transaction. This is consistent with the operation of Helbling (FF 05).
7 Thus, we cannot say the Examiner erred in finding that Helbling does teach or
8 suggest full- and reduced-portion meal products.
9 Next, the Appellant contends that there is no motivation to price the reduced-
10 portion meal at the price of a corresponding full-portion meal and that Helbling
11 explicitly teaches against it. As we stated above, price is a nonfunctional
12 descriptive attribute that will not distinguish the invention over the prior art.
13 Further, pricing is an inherently subjective process, determined by the promotional
14 strategies employed, not by functional constraints, and therefore any embodiment
15 of a price is the functional equivalent of any other price. The level of a price is an
16 arbitrary number set by a vendor based on judgment, not on functional
17 relationships. We agree, that as a predictable variation (See KSR, supra), the
18 Examiner’s suggestion that setting the minimum donation amount equal to the
19 beverage price would be an obvious promotional ploy because the customer would
20 feel that, although he might not be saving money, at least the price of the beverage
21 was contributed at no net outlay for the customer. Thus, we cannot say the
22 Examiner erred in finding that to require an outlay for the reduced-portion meal at
23 the price of a corresponding full-portion meal would be a predictable variation of
24 Helbling’s promotional campaign.
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