Ex Parte Dietz

Board of Patent Appeals and Interferences

Dec 16, 2009

10715062 (B.P.A.I. Dec. 16, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TIMOTHY ALAN DIETZ
___________

Appeal 2009-003086
Application 10/715,062
Technology Center 3600
____________

Decided: December 16, 2009
____________

Before HUBERT C. LORIN, JOSEPH A. FISCHETTI, and
BIBHU R. MOHANTY, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-003086
Application 10/715,062

2
STATEMENT OF THE CASE
Timothy Alan Dietz (Appellant) seeks our review under 35 U.S.C.
§ 134 (2002) of the final rejection of claims 1-21. Claim 22 has been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM. 1

THE INVENTION
The invention is “a method and computer program product for
dynamically serving a given web-page element (e.g., an advertisement)
based on a location of the requesting client device.” Specification 1:8-11.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method for generating and serving a web
page by a server data processing system,
comprising the steps performed by the server data
processing system of:
storing a set of location-specific page
elements;
receiving a request for the web page from a
first client browser, the request including a
geographic location data string identifying a first
location of the first client browser;
responsive to the request being received,
dynamically building the web page using the
geographic location data string to select a given

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed Dec. 14, 2007) and Reply Brief (“Reply Br.,” filed May 6, 2008),
and the Examiner’s Answer (“Answer,” mailed Mar. 7, 2008).
Appeal 2009-003086
Application 10/715,062

3
one of the set of location-specific page elements
having content associated with a physical location
in proximity to the first location of the first client
browser;
serving the web page in response to the
request;
receiving a subsequent request for the web
page from either the first client browser or a
second client browser different from the first client
browser;
determining if the subsequent request
originates from a second location that is proximate
to the first location of the first client browser; and
providing a cached version of the web page
with the selected location-specific page element if
the second location is proximate to the first
location.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Dowling US 6,522,875 B1 Feb. 18, 2003
The Examiner took Official Notice that it is old and well known in the
computer art to build web pages using a Java server page mechanism.
[Hereinafter, Official Notice].
The following rejections are before us for review:
1. Claims 1-7, 9-13, 15-19, and 21 are rejected under 35 U.S.C.
§102(e) as being anticipated by Dowling.
2. Claims 8, 14, and 20 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Dowling and Official Notice.

Appeal 2009-003086
Application 10/715,062

4
ARGUMENTS
The rejection of claims 1-7, 9-13, 15-19, and 21 under §102(e) as being
anticipated by Dowling.
Claims 1-4, and 9-13
The Appellant argues that Dowling does not anticipate claim 1
because Dowling does not describe the claimed steps of 1) dynamically
building a web page or 2) receiving a request. App. Br. 13.
First, the Appellant argues that Dowling does not describe the step of
dynamically building a web page using a geographic location data string to
select a given one of a set of location-specific page elements in response to
receiving a request that includes a geographic location data string. App. Br.
13-16. The Appellant asserts that Dowling instead describes screening or
filtering pre-existing web-pages based on location. Id. The pre-existing
web-pages in Dowling are not dynamically generated by a server according
to the Appellant. App. Br. 14-16.
The Examiner responds by quoting all of the steps of claim 1 and
stating that the steps are “interpreted in light of Appellant’s specification as
simply targeting advertisements to a client’s browser based upon said
client’s browser geographic location when said client’s browser request[s] a
web page from a network server.” Answer 9. The Examiner then quotes
portions of the Appellant’s Specification. Answer 9-10. The Examiner
quotes various portions of Dowling, cites Figure 1 and asserts that Dowling
reads on the claim limitations because Dowling “teaches targeting
advertisement’s content to mobile users based upon said users’ geographic
location, where said targeting is based upon said user’s browser request of a
web page from a network server and where said advertisement’s content is
Appeal 2009-003086
Application 10/715,062

5
pull[ed] from said network server based upon said mobile user’s geographic
location.” Answer 11-12.
The Appellant then responds that the Examiner is comparing the
Appellant’s Specification to Dowling and ignoring the specific language of
the claims. Reply Br. 2.
Second, the Appellant argues that Dowling does not describe the step
of, receiving a request for the web page from a first client browser, where
the request includes a geographic location data string identifying a first
location of the first client browser. App. Br. 16-18. The Appellant asserts
that Dowling instead describes two modes: 1) a local broadcast detection
mode where there is no request at all (App. Br. 16-17), and 2) a GPS mode,
where a periodic transmission of GPS location data is sent to a server, where
the transmission is not a request for a web page (App. Br. 17-18). Further,
the Appellant argues that in Dowling, the GPS location information is not
received from a client browser but rather a GPS device instead. App. Br. 18.
The Examiner responds that Dowling’s geographical packet is the
geographic location data string that is sent when the mobile user’s web
browser requests a web page. Answer 12-13.
The Appellant then responds that, Dowling’s client received packet
carries with it the geographically related information, but the server received
request does not contain a geographic location data string that identifies a
location of a client browser. Reply Br. 3.

Claim 5
The Appellant argues that Dowling does not describe the first client
browser providing the geographic location data string in a cookie as recited
Appeal 2009-003086
Application 10/715,062

6
in claim 5, because the geographical packet does not include a geographic
location data string. We note that the Appellant has construed a cookie as a
parcel of text. See App. Br. 20 n.1.
The Examiner points to Dowling’s “geographical packet” as meeting
this limitation. Answer 16-17.

Claim 6
The Appellant argues that Dowling does not describe the first client
browser providing the geographic location data string in an HTML form as
recited in claim 6. App. Br. 20-21. The Appellant argues that, while the
cited portion of Dowling, cited by the Examiner, does mention the mobile
unit receiving network application data in HTML form, Dowling does not
describe the mobile unit providing data in HTML form to the server. App.
Br. 20. The direction of the data flow in Dowling is opposite to the claimed
direction. Id. The Appellant asserts that an HTTP packet is not an
equivalent to an HTML form as those terms are known to those of ordinary
skill in the art. Reply Br. 5.
The Examiner points to Dowling’s HTTP request geographical packet
as meeting this limitation. Answer 17.

Claim 7
The Appellant argues that Dowling does not describe that a set of
location-specific page elements stored at a third party server as recited in
claim 7. App. Br. 21. The Appellant argues that the virtual session server
120 of Dowling, pointed to by the Examiner, is not used to store any type of
information used to dynamically generate a web-page but is instead used to
Appeal 2009-003086
Application 10/715,062

7
maintain a network connection between a mobile unit and an air interface.
Id.
The Examiner points to Dowling’s network server 125 as meeting this
limitation. App. Br. 17-18.

Claims 15-19
The Appellant argues that Dowling does not describe that the i) means
for receiving a request, ii) means for dynamically building, iii) means for
receiving a subsequent request, iv) means for determining and v) means for
providing are all part of a single unitary web server as recited in claim 15,
but instead part of a the mobile unit 105 or elements 120, 125, and 135.
App. Br. 22.
The Examiner points to Dowling’s network server 125 as meeting
this limitation. App. Br. 18.
We note that in the Appeal Brief, the Appellant grouped claims 16-19
with independent claim 1. See App. Br. 13. However, these claims depend
from claim 15 which differs in scope from claim 1 and recites an apparatus
instead of a method. We note that the Appellant does not provide separate
arguments for these claims. Therefore, we group these claims with claim 15
instead of claim 1.

Claim 21
The Appellant states that claim 21 includes substantially the same
features as claim 1 and therefore, the Examiner erred in rejecting claim 21
for the same reasons as assert with regards to claim 21 above. App. Br. 22.
In addition, the Appellant argues that claim 21 is not anticipated because it
Appeal 2009-003086
Application 10/715,062

8
requires that all of the recited steps are performed by a server data
processing system and Dowling does not describe this. Id. Specifically, the
Appellant again argues that Dowling does not describe the network server
performing the claimed step of dynamically building the web pages. Reply
Br. 5.
The Examiner again points to Dowling’s network server 125 as
meeting this limitation. App. Br. 18.

The rejection of claims 8, 14, and 20 under §103(a) as being unpatentable
over Dowling.
The Appellant relies upon their arguments traversing the rejection of
claim 1 to traverse the rejection of dependent claims 8, 14, and 20. App. Br.
23. Additionally, the Appellant argues that the Examiner has not properly
taken Official Notice that the missing features of claim 8 are “old and well
known” because the Examiner has not shown that the features were “old and
well known” at the time of filing the instant application on September 30,
1999. App. Br. 23-24.
The Examiner responds that the Appellant has not adequately
traversed the Official Notice because the Appellant includes a statement as
to why the notice fact is not considered to be common knowledge or well
known in the art and that the Appellant’s traversal of the Official Notice is
not timely. Answer 19. The Examiner stated that Official Notice was first
taken in the Non-Final Rejection of March, 12, 2007 and that the Appellant
first traversed the Official Notice in the Appeal Brief. Id.

Appeal 2009-003086
Application 10/715,062

9
ISSUES
The first issue is whether the Appellant has shown that the Examiner
erred in rejecting claims 1-7, 9-13, 15-19 and 21 as being anticipated by
Dowling. Specifically:
1) whether Dowling describes a method wherein a server data
processing system 1) receives a request from a client browser, which
includes a geographic location data string, for a web page, and 2) in response
to receiving the request, dynamically builds a web page using the geographic
location data string to select a given one of a set of location-specific page
elements as recited in claim 1;
2) whether Dowling describes a method where the first client browser
provides the geographic location data string in a cookie as recited in claim 5;
3), whether Dowling describes a method where the first client browser
provides the geographic location data string in an HTML form as recited in
claim 6;
4) whether Dowling describes a method where the set of location
specific page elements are stored at a third party server as recited in claim 7;
5) whether Dowling describes a single unitary server having all of the
means recited in claim 15; and
6) whether Dowling describes that, the step of dynamically building a
web page as recited in claim 21, is performed by a server data processing
system?
The second issue is whether the Appellant has shown that the
Examiner improperly took Official Notice that it is old and well known in
the computer art to build web pages using a Java server page mechanism
Appeal 2009-003086
Application 10/715,062

10
and, therefore, did not establish a prima facie showing of obviousness in
rejecting claims 8, 14, and 20.

FINDINGS OF FACT
We find that the following enumerated findings of fact (FF) are
supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
1. Dowling describes an embodiment of the mobile control unit 105
where the second controller link 215 and the broadcast reception
device 220 in Fig. 2 are part of a GPS receiver and the packet filter
225 in Fig. 2 now operates as a control module 225. Col. 11, lines
26-38.
2. Dowling’s method 300, depicted in Fig. 3, is carried out by a
geographical web browser running on mobile unit 105. Col. 13, ll.
12-14.
3. Dowling’s step 305 of method 300 includes sending a request
packet. Col. 14, ll. 23-48.
4. Dowling states, “when the user enters a new locality as defined by
a grid granularity, information related to the mobile units 105’s
location is uploaded via the network connection 112 and the
network server 125 downloads the set of restaurant web pages
registered for the current locality.” Col. 11, ll. 42-47.
5. Dowling also states, ‘[a]nother type of “geographical packet” is a
request packet generated when a GPS receiver identifies the
mobile unit 105 has passe[d] into a locality and a request needs to
Appeal 2009-003086
Application 10/715,062

11
be sent to the network server 125 as previously discussed.’ Col. 16,
ll. 21-25. See also col. 15, ll. 29-37.
6. Dowling describes that from the downloaded set of web pages the
control module/packet filter 225 will display web sites that are
within rang of the mobile unit or activate a virtual session to
retrieve associated web pages. See col. 11, ll. 28-41 and 50-54 and
col. 15, ll. 15-31.
7. Dowling’s method 400, depicted in Fig. 4, is carried out by the
network server 125. Col. 15, ll. 50-51.
8. Dowling describes step 405 of method 400 as “involving receiving
one or more HTTP request-packets and responding with packets
comprising web-page data.” Col. 15, ll. 64-67.
9. Dowling describes that the network server 125 server can be
optionally directly coupled to the virtual session server 120 as an
application program 130 or can be connected to the virtual session
server 120 through the Internet. Col. 6, ll. 15-24.
10. Dowling in column 13, lines 25-40 describes that the application
data (i.e. the web pages) are provided to the mobile unit in HTML
form.
11. Dowling inherently describes that the geographical packets sent by
the mobile unit to the network server are in HTML form.

PRINCIPLES OF LAW
Claim Construction
During examination of a patent application, a pending claim “[is] to
be given [its] broadest reasonable interpretation consistent with the
Appeal 2009-003086
Application 10/715,062

12
specification, and ... claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.”
In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
[W]e look to the specification to see if it provides a
definition for claim terms, but otherwise apply a
broad interpretation. As this court has discussed,
this methodology produces claims with only
justifiable breadth. In re Yamamoto, 740 F.2d
1569, 1571 (Fed. Cir. 1984). Further, as applicants
may amend claims to narrow their scope, a broad
construction during prosecution creates no
unfairness to the applicant or patentee. Am. Acad.,
367 F.3d at 1364.
In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007).
Limitations appearing in the specification but not recited in the claim are not
read into the claim. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364,
1369 (Fed. Cir. 2003).
Anticipation
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987).
Obviousness
Section 103 forbids issuance of a patent when ‘the
differences between the subject matter sought to be
patented and the prior art are such that the subject
matter as a whole would have been obvious at the
time the invention was made to a person having
ordinary skill in the art to which said subject
matter pertains.
Appeal 2009-003086
Application 10/715,062

13
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations
including (1) the scope and content of the prior art, (2) any differences
between the claimed subject matter and the prior art, and (3) the level of skill
in the art. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also
KSR, 550 U.S. at 407 (“While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.”) The Court in Graham further noted that evidence of
secondary considerations “might be utilized to give light to the
circumstances surrounding the origin of the subject matter sought to be
patented.” Graham, 383 U.S. at 17-18.

ANALYSIS
The rejection of claims 1-7, 9-13, 15-19, and 21 under §102(e) as being
anticipated by Dowling.
Claims 1-4, and 9-13
The Appellant argued claims 1-4 and 9-13 as a group (App. Br. 13-
18). We select claim 1 as the representative claim for this group, and the
remaining claims 2-4, and 9-13 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii) (2007).
We find that claim 1 is anticipated by Dowling’s GPS mode
embodiment.
A determination that a claim is anticipated under 35
U.S.C. § 102(b) involves two analytical steps. FN6
First, the Board must interpret the claim language, where
necessary. Because the PTO is entitled to give claims
their broadest reasonable interpretation, our review of the
Board's claim construction is limited to determining
Appeal 2009-003086
Application 10/715,062

14
whether it was reasonable. In re Morris, 127 F.3d 1048,
1055 (Fed.Cir.1997). Secondly, the Board must compare
the construed claim to a prior art reference and make
factual findings that “each and every limitation is found
either expressly or inherently in [that] single prior art
reference.” Celeritas Techs. Ltd. v. Rockwell Int'l Corp.,
150 F.3d 1354, 1360 (Fed.Cir.1998).
In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004).
First, we turn to the step of a server data processing system “receiving
a request for the web page from a first client browser, the request including a
geographic location data string identifying a first location of the first client
browser” as recited in claim 1 and at issue.
The Appellant argues that receiving GPS information from the mobile
unit in Dowling does not read on the step of receiving a request. App. Br.
17. The Appellant seems to be arguing that a request must be made by the
user of the system and must contain information, such as a URL for the web
page. See App. Br. 17-18. However, we find that this is not required by
claim 1.
Claim 1 does not restrict the structure or form of the request, except to
recite that it includes “a geographical location data string.” Claim 1 also
does not recite that the request is for a specific web page. Further, claim 1
does not recite a send of a user sending the request. . “Many of appellant’s
arguments fail from the outset because, . . . they are not based on limitations
appearing in the claims. ” In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
We give claim 1 the broadest reasonable construction in light of the
Specification as they would be interpreted by one of ordinary skill in the art
and construe claim 1 to require the server data processing system to perform
Appeal 2009-003086
Application 10/715,062

15
the action of receiving a request in some form that includes a geographic
location data string.
We find that Dowling’s description of step 405 in the embodiment
where the mobile unit 105 includes a GPS receiver (FF 1) reads on this
limitation as recited above. Dowling describes the network server 125
receiving a geographical packet when the mobile unit enters a new locality.
See FF 4-5 and 7-8. Dowling describes this geographical packet as a
“request.” FF 8. Further, we find that this geographical packet would
include the mobile unit’s location information that is uploaded to the
network server (FF 4), and since, the information is sent in a data packet this
reads on a data string.
Further, in regards to the Appellant’s argument that the request is not
received from the browser as claimed but instead from the GPS receiver in
Dowling, we note that the claims do not recite a step of transmitting the
request but merely a step of receiving the request. The action recited by the
claim as being performed by server data processing system does not change
because the request is “from the browser” nor does the structure of the
request change. Further, we note that Dowling states “[t]he method 300 is
carried out by an application program, such as a geographical browser
running on the mobile unit 105.” FF 2. Method 300 includes step 305,
which includes sending the geographical packet, (FF 3) as discussed above.
Next, we turn to the step of a server data processing system,
“responsive to the request being received, dynamically building the web
page using the geographic location data string to select a given one of the set
of location-specific page elements having content associated with a physical
location in proximity to the first location of the first client browser” as
Appeal 2009-003086
Application 10/715,062

16
recited in claim 1 and at issue. The Appellant seems to argue that claim 1
requires that unique web pages are generated for the first time and that the
web pages were not previously pre-existing. App. Br. 14-16. However, we
find that the claim requires “dynamically building a web page” and not
“generating” a web page. Further, claim 1 does not require that a unique
web page be built, but also encompasses copying a pre-existing web page.
Further, we find that the claim only requires one location-specific page
element and does not require the web page to have other elements.
Therefore, we construe claim 1 to encompass copying a web-page that has at
least one element.
We find that Dowling’s description of the network server responding
to the request from the mobile unit reads on this limitation. Dowling
describes the network server, in step 405, responding to the geographical
packet with “packets comprising web-page data.” FF 8. These packets are
created in response to the request and the network server would inherently
have to create a copy of the web page data for the packet. FF 8. We find
that this reads on dynamically building a web page as recited in claim 1.
Accordingly, we find that the Appellant has not shown that the
Examiner erred in rejecting claims 1, 9, 21, and claims 2-4 and 10-13,
dependent thereon, under §102(e) as anticipated by Dowling.

Claim 5
We find that Dowling describes the first client browser providing the
geographic location data string in a cookie as recited in claim 5. We note
that the Appellant has construed “cookie” as “a parcel of text.” See App. Br.
20 n.1. As discussed above, we find that the geographic packet of Dowling
Appeal 2009-003086
Application 10/715,062

17
reads on the claimed request that includes a geographic location data string.
A packet is a parcel of text. Accordingly, we find that the Appellant has not
shown that the Examiner erred in rejecting claim 5 under 35 U.S.C. § 102(e).

Claim 6
We find that the Appellant has not shown that the Examiner erred in
rejecting claim 6. Claim 6 requires that the geographic location data string
is in HTML form. We find that the geographical packets of Dowling are
inherently in HTML form. FF 11. Dowling describes a client running a
geographical web browser (FF 2) and sending geographical packets, which
are describes as HTTP packets, to a server (FF 8). In response to the HTTP
packets, the server downloads a set of web pages in HTML. FF 8 and 10.
Given these facts, we find that Dowling inherently describes that the
geographical packets are in HTML form. FF 11. Accordingly, we find that
the Appellant has not shown that the Examiner erred in rejecting claim 6
under 35 U.S.C § 102(e) as anticipated by Dowling.

Claim 7
We find that Dowling describes that the set of location specific page
elements are stored at a third party server as recited in claim 7. Dowling
states that the network server 125 can optionally be directly part of the
virtual session server 120 or connected to the virtual session server 120
through the Internet. FF 9. When connected through the internet, the
network server 125 reads on the claimed third party server. Accordingly, we
find that the Appellant has not shown that the Examiner erred in rejecting
claim 7 under 35 U.S.C. § 102(e) as anticipated by Dowling.
Appeal 2009-003086
Application 10/715,062

18

Claims 15-19
Claim 15, unlike claim 1, recites an apparatus - “[a] web server.”
Claim 1 recites a method performed by a “server data processing system.”
The Appellant argues that Dowling does not teach a “single unitary web
server.” The Appellant further argues that Dowling does not teach that all of
the means recited in claim 15 are part of the web server, since packet filter is
part of the control module 225 of the mobile unit (App. Br. 22) and the
geographic packet of Dowling does not include a location data string (Reply
Br. 5).
First, we find that the claim 15 does not require that the web server be
unitary. “Many of appellant’s arguments fail from the outset because, . . .
they are not based on limitations appearing in the claims . . . .” In re Self,
671 F.2d 1344, 1348 (CCPA 1982). Claim 15 is silent as to whether the web
server is unitary or non-unitary and, therefore, encompasses both.
Next, though it is not entirely clear which specific means recited in
claim 15 the Appellant’s arguments are drawn to, we will assume that the
Appellant is arguing that the Dowling does not describe the means for
dynamically building, since the Appellant has previously mentioned the
packet filter in arguments traversing other limitations similar to this means
(See App. Br. 14-16) , and that Dowling does not describe the means for
receiving a request, since the Appellant has previously mentioned the
geographic packet in arguments traversing other limitations similar to this
means (See App. Br. 17-18).
The limitations at issue are in “means-plus-function” format.
Appeal 2009-003086
Application 10/715,062

19
An element in a claim for a combination may be
expressed as a means or step for performing a specified
function without the recital of structure … in support
thereof, and such claim shall be construed to cover the
corresponding structure … described in the specification
and equivalents thereof.
35 U.S.C. §112, ¶ 6 (2000). The Appellant has set forth in the Appeal Brief
that a server running a control program 30 is the structure in the
Specification that corresponds to these limitations. App. Br. 10. Figure 3 of
the Specification is a flow chart that illustrates operation of the dynamic
page generator. Specification 7:9-10. The Appellant equates block 48 of
Figure 3 to the means for receiving a request and blocks 54-64 of Figure 3 to
the means for dynamically building a web page. Id.
As discusses above, we find that Dowling describes a server which is
programmed to perform the claimed functions. The Appellant does not
argue that the programmed server in Dowling is not an equivalent of the
claimed server. Accordingly, we find that the Appellant has not shown that
the Examiner erred in rejecting claim 15, and claims 16-19, dependent
thereon, under 35 U.S.C. § 102(e) as anticipated by Dowling.

Claim 21
We find that the Appellant has not shown that the Examiner erred in
rejecting claim 21 as being anticipated by Dowling. The Appellant argues
that Dowling does not describe that all of the steps of claim 21 are
performed by a server data processing system (App. Br. 22), specifically the
step of dynamically building a web page (Reply Br. 5). However, as
discussed above with regard to claim 1, we find that Dowling does describe
this step being performed by the network server 125, which is part of a
Appeal 2009-003086
Application 10/715,062

20
system that processes server data as depicted in Fig. 1. Accordingly, we find
that the Appellant has not shown that the Examiner erred in rejecting claim
21 under 35 U.S.C. § 102(e) as anticipated by Dowling.

The rejection of claims 8, 14, and 20 under §103(a) as being unpatentable
over Dowling.
First, the Appellant argued against the rejection of claims 8, 14, and
20 for the same reasons used to argue against the rejection of claim 1. App.
Br. 23. Accordingly, we found them unpersuasive regarding claim 1 as to
that rejection, and we find them equally unpersuasive as to error in the
rejection of claims 8, 14, and 20.
Next, we find that the Appellant has not seasonably traversed the
Examiner’s taking of Official Notice. If applicant does not seasonably
traverse the well-known statement during examination, then the object of the
well-known statement is taken to be admitted prior art. In re Chevenard, 139
F.2d 711, 713 (CCPA 1943). The Examiner first took Official Notice that
“it is old and well known in the computer art to build web pages using a Java
server page mechanism” on page 4 of the Non-Final Rejection of March 12,
2007. The Appellant filed a Response to the Office Action on June 7, 2007,
which did not include a traverse of the Examiner’s Official Notice. See
Response to the Office Action 14. The Examiner’s Official Notice is taken
to be admitted prior art.
Accordingly, we find that the Appellant has not shown that the
Examiner erred in rejecting claims 8, 14, and 20 under §103(a) over
Dowling.

Appeal 2009-003086
Application 10/715,062

21
CONCLUSIONS OF LAW
We conclude that the Appellant has not shown that the Examiner
erred in rejecting claims 1-7, 9-13, 15-19, and 21 under 35 U.S.C. §102(e) as
anticipated by Dowling and claims 8, 14, and 20 under 35 U.S.C. §103(a) as
unpatentable over Dowling.

DECISION
The decision of the Examiner to reject claims 1-21 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007).

AFFIRMED

mev

IBM CORP (YA)
C/O YEE & ASSOCIATES PC
P.O. BOX 802333
DALLAS TX 75380