Appeal 2006-3387
Application 09/385,489
value and using this information to calculate what the manufacturer owes the
retailer and facilitating this payment (Br. 46-47).
The Examiner found that Jones inherently discloses capturing and storing a
predetermined payment value because Jones teaches that by crafting the promotion
contract around performance goals evidenced by incremental sales volume
increases, and having recourse to a valid third party audit of the performance
achieved, both retailer and manufacturer have a clear and current factual record to
use in resolving payment disputes (Answer 4). The Examiner thus determined that
it would be inherent to track the performance that would help manufacturers
determine how much money they owed to the retailers, because manufacturers
would have to know the products that are in promotion and the payment value of
the product for settlement (Answer 4).
Jones teaches tracking incremental sales volume increases to use as an
independent audit of the performance achieved by a trade promotion. We do not
see how this teaching, however, would necessarily require the independent auditor
to store a predetermined payment value of what the manufacturer will owe the
retailer for each promoted product sold by the retailer during the trade promotion
or a predetermined payment value of what the manufacturer will owe the retailer
for conducting the trade promotion. Jones does not disclose that its independent
audit would include a calculation of the amount that the manufacturer owes the
retailer as a result of an incremental sales volume increase during a trade
promotion. Rather, Jones teaches using its electronic audit system for a trade
promotion in which the manufacturer agrees to reimburse retailers relative to the
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