Appeal 2006-3387
Application 09/385,489
(admitting that “[t]he manufacturer usually sent or provided the deal sheet
manually or electronically (such as by mail, facsimile, or e-mail) to the retailer.”)
Then, using the audit numbers from the Jones system, and the agreed upon deal
sheet, the retailer’s and the manufacturer’s calculations of the total owed should be
the same.
All that the claimed invention arguably provides in the way of unmet needs
over the Jones system is a way for a third party system to automate the calculation
of the amount owed by the manufacturer and initiate a payment or generate an
invoice for the amount. Appellants’ objective evidence, however, does not
demonstrate a long-felt need for automation of this function by a third party and
further does not show that manufacturers and retailers were not already calculating
and processing this amount with an automated system of their own. Further, we do
not glean from Appellants’ objective evidence why the manufacturer or retailer
would need a third party to perform this calculation for them. Clearly, a third party
would charge for this service. The parties would need to balance the cost of
performing this function internally versus the cost of using an escrow service. This
is merely a cost-benefit analysis, but does not show a long-felt, but unmet need, in
the industry.
Appellants also attempted to show failure of others by contending that
Jones’s system for trade promotions has never been commercially successful
(Windish Decl. ¶56). Appellants failed to provide any objective evidence to
demonstrate either (1) Jones’s attempts to commercialize its invention, or (2)
Jones’s failure of commercial success. As such, we find no support for the
25
Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: September 9, 2013