Appeal 2006-3387
Application 09/385,489
THE REJECTION
The Examiner relies upon the following as evidence of unpatentability:
Schultz US 5,056,019 Oct. 08, 1991
Jones US 5,832,458 Nov. 03, 1998
The Examiner rejected claims 1-32, 37-83, and 88-94 under 35 U.S.C.
§ 103(a) as being unpatentable over Jones in view of Schultz.
ISSUE
Appellants contend Jones does not teach using its audit system to determine
the amount of money the manufacturer owes the retailer for a trade promotion or
for paying or causing payment of that amount of money from the manufacturer to
the retailer (Br. 31). Appellants further contend that Jones teaches using its system
to passively audit retail POS transactions, including trade promotions, and does not
expressly or inherently disclose capturing and storing in its database at least one of
(a) a predetermined payment value the manufacturer will owe the retailer for each
promoted product sold by the retailer during the trade promotion, and (b) a
predetermined payment value the manufacturer will owe the retailer for conducting
the trade promotion (Br. 33). Appellants contend that Schultz does not cure the
deficiencies of Jones, because the Schultz system does not settle reward
promotions between the retailer and the manufacturer (Br. 39).
The Examiner admits that Jones does not expressly mention “promoted
product identification and predetermined payment value” (Answer 4). The
Examiner found, however, Jones teaches that by crafting the promotion contract
around performance goals evidenced by incremental sales volume increases, and
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