Appeal No. 2007-1110 Page 11
Application No. 09/832,603
interpreted by one of ordinary skill in the art is that it would include any aspect of
the cost of a component or service that one would have to include to reach the
lowest cost potential of the component or service and, ultimately, its ought to be
cost. Given that construction of the phrase, supplier cost, if necessary to make that
calculation, would be covered by the claim.
The same reasoning applies to another alleged distinction – that the
references seeks an accurate determination of actual costs which is unrelated to
determining the lowest cost potential as the claim describes. The broadest
reasonable construction of the claim in light of the Specification as it would be
interpreted by one of ordinary skill in the art is that it would include any aspect of
the cost of a component or service that one would have to include to reach the
lowest cost potential of the component or service and, ultimately, its ought to be
cost. Given that construction of the phrase, actual cost, if necessary to make that
calculation, would be covered by the claim.
Appellants also argue that the claimed invention leads to a lowest cost
potential that would be significantly lower than an application of actual cost as
would determined by the applying the methods of the references. Appellants also
argue that the references are “incapable of yielding a lowest cost potential.” In that
regard, Appellants reproduce examples from Burns and disclosure from Horie to
explain why they lead to a determination of a cost that is not the lowest cost
potential. Appeal Br. 25-29. The difficulty with this argument is that the claim
does not limit the factors that may be considered in determining a “lowest cost
potential.” There is nothing in the claim that excludes considerations of
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