Appeal 2006-3387
Application 09/385,489
the problem to be solved as a whole would have suggested to those of ordinary
skill in the art.” Kahn, 441 F.3d at 987-88, 78 USPQ2d at 1336 (quoting In re
Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1317 (Fed. Cir. 2000)).
ANALYSIS
CLAIMS 1-29, 37-76, 88, AND 89
Appellants argue claims 1-29, 37-76, 88, and 89 as a group (Br. 42-59).
Although Appellants list elements of certain dependent claims on pages 57-58 of
the Brief, Appellants do not provide any argument as to why Jones does not teach
the listed elements. A statement which merely points out what a claim recites will
not be considered an argument for separate patentability of the claim. 37 C.F.R. §
41.37(c)(vii) (2006). As such, we select claim 1 as a representative claim and the
remaining claims stand or fall together with claim 1
Independent claim 1 recites capturing and/or storing “terms of the trade
promotion” including “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.”
Appellants admit that Jones teaches an audit system for auditing and
monitoring POS transactions (including transactions involving trade promotions)
(Br. 42). Appellants further admit that Jones’s audit system must capture the
identification of the promoted product in order to provide the audit reports (Br. 44).
Appellants contend that Jones does not teach capturing a predetermined payment
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