Ex Parte Lee

Board of Patent Appeals and Interferences

Aug 24, 2009

10621294 (B.P.A.I. Aug. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte REID LEE
____________

Appeal 2008-002402
Application 10/621,294
Technology Center 3600
____________

Decided: August 24, 2009
____________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
ANTON W. FETTING, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2008-002402
Application 10/621,294

STATEMENT OF THE CASE
Reid Lee (Appellant) seeks our review under 35 U.S.C. § 134 of the
final rejection of claims 1-76. We have jurisdiction under 35 U.S.C. § 6(b)
(2002).
SUMMARY OF DECISION
We AFFIRM.1
THE INVENTION
The invention relates to electronic commerce and, more particularly,
“to a system and method for enabling a user of an e-commerce system to
visually view and/or configure a product for purchase.” Specification 1:15-
16.
The claims on appeal are divided between method claims and
“memory medium” claims. The method claims are independent claims 1,
17, 33, 52, 62, and 69, and dependent claims 2-16, 18-32, 34-48, 53-61, 63-
68, and 70-75, respectively, and independent claim 76. The “memory
medium” claims are claims 49-51.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed Jan. 22, 2007) and Reply Brief (“Reply Br.,” filed Aug. 6, 2007),
and the Examiner’s Answer (“Answer,” mailed Jun. 5, 2007).
Appeal 2008-002402
Application 10/621,294

3
1. A method for enabling a user to configure a system in an e-
commerce system, wherein the e-commerce system includes a client
system coupled through a network to an electronic commerce server,
the method comprising:
receiving a request from a user via the network of the client
system to configure the system, wherein the system includes one or
more customizable components;
providing an image of the system to the client system via the
network for display, wherein images of at least a subset of the one or
more customizable components form at least a portion of the image of
the system;
determining customizable component selections for at least one
of the one or more customizable components of the system in
response to user input, wherein said determining customizable
component selections comprises:
receiving user input via the network selecting an image
of a first customizable component which is visually depicted in the
image of the system, wherein said receiving user input selecting the
image of the first customizable component operates to select the first
customizable component for configuration; and
receiving user input via the network selecting a first
customizable component option for the first customizable component,
wherein the user input selecting the first customizable component
option comprises the customizable component selection for the first
customizable component;
wherein the customizable component selections applied to the
system specify a configured system.
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Henson
Motomiya
US 6,167,383
US 6,083,267
Dec. 26, 2000
Jul. 4, 2000
Appeal 2008-002402
Application 10/621,294

4
IBM Technical Disclosure Bulletin, “Visual Configurator System for
Configuring and Ordering IBM Products,” Vol. 34, No. 12, May 1992.
(IBM) (hereafter, IBM)

The following rejection is before us for review:
1. Claims 1-76 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Henson, IBM, and Motomiya.
ISSUE
The issue is whether the Appellant has shown error in the rejection of
claims 1-76 under 35 U.S.C. §103(a) as being unpatentable over Henson,
IBM, and Motomiya.
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).
The scope and content of the prior art
1. Henson relates to an online store which is “one component of an
Internet website for which a customer may go to configure a particular
computer system, for example, according to desired options of the
customer.” Col. 4, ll. 36-39.
2. Henson discloses computer equipment accessing the online store via
the Internet coupled to a network as part of an electronic commerce
system. See col. 5, l. 66 - col. 6, l. 1, and Fig. 2.
Appeal 2008-002402
Application 10/621,294

5
3. Motomiya relates to a system for designing an accessory.
4. Motomiya describes a system configured for a user to shop a virtual
shop on a terminal via the Internet. Col. 3, ll. 32-39.

5. Motomiya discloses that,
[t]he virtual shops 5 [see Fig. 1] thus accessed transmit to
the user terminal 7 information and the photographic
images of various parts constituting the original
accessories supplied by each of the particular shops. The
user selects the parts displayed on the display unit 8 of
his terminal and produces an accessory of his originality
on the display screen.
Col. 3, ll. 40-45.
6. IBM relates to a visual configurator for configuring and ordering a
computer system.
7. IBM discloses a visual representation of a configurable computer
system (Fig. 2, p. 369) on a display with menus from which a user
may select desired components.
Any differences between the claimed subject matter and the prior art
8. The claimed invention appears to be a combination of elements and
features separately disclosed in the cited references.
The level of skill in the art
9. Neither the Examiner nor the Appellant has addressed the level of
ordinary skill in the pertinent art of configuring systems online. We
will therefore consider the cited prior art as representative of the level
Appeal 2008-002402
Application 10/621,294

6
of ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350,
1355 (Fed. Cir. 2001) (“[T]he absence of specific findings on the level
of skill in the art does not give rise to reversible error ‘where the prior
art itself reflects an appropriate level and a need for testimony is not
shown’”) (quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp.,
755 F.2d 158, 163 (Fed. Cir. 1985)).
Secondary considerations
10. There is no evidence on record of secondary considerations of non-
obviousness for our consideration.
PRINCIPLES OF LAW
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.’
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
Appeal 2008-002402
Application 10/621,294

7
circumstances surrounding the origin of the subject matter sought to be
patented.” Graham, 383 U.S. at 17-18.

ANALYSIS

Claims 1, 9-11, 13, 16, 49, 52, 53, 57, and 58
The Appellant argued claims 1, 9-11, 13, 16, 49, 52, 53, 57, and 58 as
a group. App. Br. 11-16; see also Reply Br. 2-3. We select claim 1 as the
representative claim for this group, and the remaining claims 9-11, 13, 16,
49, 52, 53, 57. and 58 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii)
(2007).
The Appellant challenges the Examiner’s prima facie case of
obviousness by arguing that the cited references do not teach or suggest
providing an image of the system to the client system via the network and
receiving user input via the network selecting an image which is visually
depicted in the image of the system. The argument focuses entirely on
Motomiya and IBM. The argument is not persuasive as to error in the
rejection.
As the Examiner has made clear (see Answer 21), it is Henson which
is cited as disclosing the configuring of a computer system on a client
computer via the Internet (i.e., over a network). This assessment of what
Henson discloses is not in dispute. The Examiner has admitted that Henson
employs a text-based, rather than an image-based approach, to configuring
Appeal 2008-002402
Application 10/621,294

8
the system on the computer. See Answer 5-7. But according to the
Examiner, it would have been obvious to modify Henson’s text-based
system to be an image-based system in view of Motomiya and IBM.
Answer 6-7. Accordingly, the Examiner has never taken the position that
the references teach or suggest providing an image of the system to the client
system via the network and receiving user input via the network selecting an
image which is visually depicted in the image of the system as the Appellant
has argued but rather took the position that it would have been obvious to do
so given what the references disclose as a whole.
As to the specific deficiencies in the IBM and Motomiya disclosures
that the Appellant has raised (App. Br. 11-13), we agree with the Examiner
(Answer 22) that this does little to weaken the prima facie case of
obviousness. “The question in a §103 case is what the references would
collectively suggest to one of ordinary skill in the art. In re Simon, 461 F.2d
1387, (CCPA 1972).” In re Ehrreich, 590 F.2d 902 (Emphasis original.)
To the extent that the Appellant is meaning to argue that the IBM
disclosure cannot be combined with Henson as the Examiner has argued
because IBM discloses a system on a single machine rather than on a
network, such an argument would not persuade us as to error in the rejection
given the record before us. The Appellant “submits that those skilled in the
art of e-commerce understand that a program executing independently on a
single computer cannot teach an e-commerce system, much less providing
an image of the system to the client via the network for display.” App. Br.
11. But we find no evidence supporting this contention elsewhere in the
record. See generally, In re Glass, 474 F.2d 1015, 1019 (CCPA 1973).
Appeal 2008-002402
Application 10/621,294

9
Attorney argument cannot take the place of record evidence. See also, In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); Johnston v. IVAC Corp., 885
F.2d 1574, 1581 (Fed. Cir. 1989).
Furthermore, at the time of the invention, as evidenced by Henson,
computer networking was well known in the art. Given this, one of ordinary
skill in the art with the references in hand would be led to adapt the Henson
system to communicate images. Cf. Leapfrog Enterprises Inc. v. Fisher-
Price Inc., 485 F.3d 1157, 1163 (Fed. Cir. 2007). (“The combination is thus
the adaptation of an old idea or invention . . . using newer technology that is
commonly available and understood in the art.”)
To the extent the Appellant is meaning to argue that the IBM
disclosure cannot be combined with Motomiya as the Examiner has argued
because Motomiya is directed to jewelry design rather than configuring a
computer system, such an argument would not persuade us as to error in the
rejection. The distinction between images of jewelry and images of a
computer system is a distinction based on nonfunctional descriptive
material.
Nonfunctional descriptive material cannot render nonobvious an
invention that would have otherwise been obvious. In re Ngai, 367 F.3d
1336, 1339 (Fed. Cir. 2004). Cf. In re Gulack, 703 F.2d 1381, 1385 (Fed.
Cir. 1983) (when descriptive material is not functionally related to the
substrate, the descriptive material will not distinguish the invention from the
prior art in terms of patentability). Furthermore, “[w]hen a work is available
in one field of endeavor, design incentives and other market forces can
prompt variations of it, either in the same field or a different one. If a person
Appeal 2008-002402
Application 10/621,294

10
of ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.” KSR, 550 U.S. at 417.
Finally, the Appellant argued that the Examiner has failed to provide a
motivation to combine the prior art such that it would have led one of
ordinary skill in the art to the claimed invention. App. Br. 14-16. In fact, the
Examiner did articulate an apparent reasoning with logical underpinning for
the legal conclusion of obviousness. See e.g., Answer 5-7. The Appellant
further argued that the cited reference does not “indicate” any
motivation/suggestion for the combination. However, that is an overly-strict
standard for obviousness. “The obviousness analysis cannot be confined by
a formalistic conception of the words teaching, suggestion, and motivation,
or by overemphasis on the importance of published articles and the explicit
content of issued patents.” KSR, 550 U.S. at 419.
Here we find the references disclose all the elements of the claimed
invention that do no more than one would expect if they were combined as
claimed. “[W]hen a patent ‘simply arranges old elements with each
performing the same function it had been known to perform’ and yields no
more than one would expect from such an arrangement, the combination is
obvious.” KSR, 550 U.S. at 417 (quoting Sakraida v. Ag Pro, Inc., 425 U.S.
273, 282).
For the foregoing reasons, we are not persuaded by the Appellant’s
argument as to error in the rejection of claims 1, 9-11, 13, 16, 49, 52, 53, 57,
and 58.

Claims 2-4, 6-8, 56, 66, and 73
Appeal 2008-002402
Application 10/621,294

11
The Appellant argued claims 2-4, 6-8, 56, 66, and 73 as a group. App.
Br. 16-17; see also Reply Br. 3-4. We select claim 2, as the representative
claim for this group, and the remaining claims 3, 4, 6-8, 56, 66, and 73 stand
or fall with claim 2. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The arguments raised in challenge to the rejection of claim 2 are
essentially the same as those raised against the rejection of claim 1. They
are fully addressed above. For the same reasons, we are not persuaded by
the Appellant’s argument as to error in the rejection of claims 2-4, 6-8, 56,
66, and 73.
We should add, on the subject of the particular problem the Appellant
alleges the instant inventor was concerned about that the prior art does not
appreciate (see App. Br. 17),
[t]he question is not whether the combination was obvious to
the patentee but whether the combination was obvious to a
person with ordinary skill in the art. Under the correct analysis,
any need or problem known in the field of endeavor at the time
of invention and addressed by the patent can provide a reason
for combining the elements in the manner claimed.
KSR, 550 U.S. at 420.

Claim 5
The Appellant argued claim 5 at App. Br. 17 and Reply Br. 4. The
Appellant argued that the prior art does not show displaying text in the
image of the configured system. This appears to be shown in IBM. IBM, p.
369, appears to show an image of a configured system with text in the
Appeal 2008-002402
Application 10/621,294

12
image. Accordingly, the argument is not persuasive as to error in the
rejection.

Claims 12, 14, 15, 54, and 55
The Appellant argued claims 12, 14, 15, 54, and 55 as a group. App.
Br. 17-19; see also Reply Br. 4. We select claim 12 as the representative
claim for this group, and the remaining claims 14, 15, 54, and 55 stand or
fall with claim 12. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
Claim 12 further defines the “menu comprising the customizable
component options” of claim 10 “includes images indicating the
customizable component options.” The Examiner argued that claim 12
describes nonfunctional descriptive matter. Answer 12. The Appellant
disagrees, arguing in part that “in order to perform the method as claimed,
the images must be included/provided in the menu comprising customizable
component options. App. Br. 18.
We find that the Examiner has the better argument.
The question of whether claimed subject matter is directed to
nonfunctional descriptive material is a question of claim construction. The
question here is not whether the prior art would have led one of ordinary
skill in the art to include a menu comprising customizable component
options. It does. See the discussion re claim 10 above. Nor does there appear
to be any dispute that,, as the Examiner has argued (see Answer 11), the
prior art shows menus comprising customizable component options that are
images. See. e.g., IBM, p. 11: “. . . presents one with a picture of an empty
machine, and through the use of a mouse, the user is presented with menus
Appeal 2008-002402
Application 10/621,294

13
of potential device . . . .”. The question is whether, as claim 12 requires, the
menu includes “images indicating the customizable component options”.
That distinction - that the images are to be indicative of customizable
component options - is a distinction based on the content of the image of the
menu.
Patentable weight need not be given to descriptive material absent a
new and unobvious functional relationship between the descriptive material
and the substrate. See In re Lowry, 32 F.3d 1579, 1582-83 (Fed. Cir. 1994);
In re Ngai, 367 F.3d at 1338. See also Ex parte Mathias, 84 USPQ2d 1276
(BPAI 2005) (nonprecedential) (Federal Circuit Appeal No. 2006-1103; WL
2433879 affirmed without written opinion Aug. 17, 2006). In that regard,
the Appellant has not come forward with evidence sufficient to show that the
structure of the information, i.e., “images indicating the customizable
component options”, is functionally affected by it being, specifically,
indicative of customizable component options.
Absent such evidence, it was reasonable for the Examiner to conclude
that the “images indicating the customizable component options” was
descriptive and not functionally related to any structure of the claimed
invention and as such fell under the category of patentably inconsequential
subject matter. See Ex parte Curry, 84 USPQ2d 1272, 1275 (BPAI 2005)
(informative) (“Common situations involving nonfunctional descriptive
material are: - a computer-readable storage medium that differs from the
prior art solely with respect to nonfunctional descriptive material, such as
music or a literary work, encoded on the medium, - a computer that differs
from the prior art solely with respect to nonfunctional descriptive material
Appeal 2008-002402
Application 10/621,294

14
that cannot alter how the machine functions (i.e., the descriptive material
does not reconfigure the computer), or - a process that differs from the prior
art only with respect to nonfunctional descriptive material that cannot alter
how the process steps are to be performed to achieve the utility of the
invention. Thus, if the prior art suggests storing a song on a disk, merely
choosing a particular song to store on the disk would be presumed to be well
within the level of ordinary skill in the art at the time the invention was
made. The difference between the prior art and the claimed invention is
simply a rearrangement of nonfunctional descriptive material.).” See also Ex
parte Mathias, 84 USPQ2d 1276 (BPAI 2005) (informative).
For the foregoing reasons, we do not find the Appellant’s argument
persuasive as to error in the rejection of claims 12, 14, 15, 54, and 55

Claims 17, 25-27, 29, 32, 51, 62, 67, and 68
The Appellant argued claims 17, 25-27, 29, 32, 51, 62, 67, and 68 as a
group. App. Br. 19-22; see also Reply Br. 4-5. We select claim 17 as the
representative claim for this group, and the remaining claims 25-27, 29, 32,
51, 62, 67, and 68 stand or fall with claim 17. 37 C.F.R. § 41.37(c)(1)(vii)
(2007).
The issue here is whether the limitation “measurement system” in the
claimed method is nonfunctional descriptive material as the Examiner has
argued it to be. We agree with the Examiner.
The claimed method is not directed to the configuring of a
measurement system. Rather, the claimed method is directed to configuring
an image of a measurement system that a user sees displayed on a client
Appeal 2008-002402
Application 10/621,294

15
system. The measurement system is simply a particular content the image
carries for display to the user. There is no evidence on the record that the
method is structurally or functionally affected by the display of a
measurement system as opposed to the display of another device. While we
understand that the claimed method is particularly concerned with
customizing images of a measurement system, the “measurement system” in
the context of the claimed method appears to be mere descriptive material of
the image displayed. In that regard, patentable weight need not be given to
descriptive material absent a new and unobvious functional relationship
between the descriptive material and the substrate. In that regard, the
Appellant has not come forward with evidence sufficient to show that the
structure of the image is functionally affected by it being, specifically, that
of a “measurement system.” Absent such evidence, it was reasonable for the
Examiner to conclude that it was descriptive and not functionally related to
any structure of the claimed invention and as such fell under the category of
patentably inconsequential subject matter.
We have considered the Appellant’s statement submitting “that the
difference is not solely an “image” but instead relates how the system would
be configured; in other words, configuration of a measurement system
requires different choices, possible devices, components, and methods than
configuration of a system in general.” Reply Br. 4. However, we are not
persuaded by the evidence on the record that one of ordinary skill in the art
would not reasonably broadly construe the method claimed as drawn to
configuring solely an image. A plain reading of the claim reveals the
method claimed as one which, when practiced, yields but one result, a
Appeal 2008-002402
Application 10/621,294

16
customized image. We appreciate that the Appellant intends to use this
image as a blueprint for subsequently physically producing a measurement
system matching that blueprint. But that intention is not a part of the
claimed method. There is no step of actually producing any measurement
system. Rather, the claimed method is expressly worded as a method “for
enabling a user to configure a measurement system.” The words of the
claim are such that the method claimed is reasonably broadly construed to
cover a technique for producing a customized image of a measurement
system, not the measurement system itself.
The Appellant criticizes the propriety of a rejection under § 103 that
relies on finding certain limitations patentably inconsequential as
nonfunctional descriptive material on the grounds that (1) such a finding is
germane to a rejection under §101, not §103, and (2) all positive words of a
claim must be considered. App. Br. 20-22 and Reply Br. 4-5.
The Appellant is correct that all claim limitations must be considered.
But we find that the Examiner has amply done so. Nothing in the claim was
ignored. Giving certain limitations patentably-inconsequential weight
because they are nonfunctional descriptive material is a doctrine that can
applied, where warranted, during a claim construction analysis. And we
find, for the foregoing reasons, that the Examiner properly applied that
doctrine, in the context of the claim as a whole, when it was determined that
certain limitations could only be reasonably broadly construed to be no more
than descriptive of the content of an image. The Examiner did not find that
the entire claimed method was nonfunctional descriptive material, only the
content of the image was so found. Had that not been the case, the Examiner
Appeal 2008-002402
Application 10/621,294

17
might have rejected the claim under §101. Instead, the Examiner analyzed
the claim as a whole and, but for the subject matter deemed nonfunctional
descriptive material, addressed all limitations, showing where in the cited
references they were disclosed in an effort to establish a prima facie case of
obviousness under §103. We see nothing in the Examiner’s analysis which
is inconsistent with the law or the guidelines expressed in the MPEP.
For the foregoing reasons, we are not persuaded as to error in the
rejection of claims

Claims 18-20, 22-24, and 63
The Appellant argued claims 18-20, 22-24, and 63 as a group. App.
Br. 22. We select claim 18 as the representative claim for this group, and
the remaining claims 19, 20, 22-24, and 63 stand or fall with claim 18. 37
C.F.R. § 41.37(c)(1)(vii) (2007).
The Appellant states that the “[a]rguments regarding claim 2 above
apply to these claims.” App. Br. 22. For the same reasons we found the
arguments challenging the rejection of claim 2 unpersuasive as to error in
the rejection, we find them unpersuasive as to error in the rejection of claims
18-20, 22-24, and 63.

Claim 21
The Appellant states that the “[a]rguments regarding claim 5 above
apply to this claim.” App. Br. 22. For the same reasons, we found the
arguments challenging the rejection of claim 5 unpersuasive as to error in
Appeal 2008-002402
Application 10/621,294

18
the rejection, we find them unpersuasive as to error in the rejection of claim
21.

Claims 28, 30, 31, 64, and 65
The Appellant argued claims 28, 30, 31, 64, and 65 as a group. App.
Br. 22. We select claim 28 as the representative claim for this group, and
the remaining claims 30, 31, 64, and 65 stand or fall with claim 28. 37
C.F.R. § 41.37(c)(1)(vii) (2007).
The Appellant states that the “[a]rguments regarding claims 12, 14,
and 15 above apply to these claims.” App. Br. 22. For the same reasons we
found the arguments challenging the rejection of claim 12 unpersuasive as to
error in the rejection, we find them unpersuasive as to error in the rejection
of claims 28, 30, 31, 64, and 65.

Claims 33, 41-43, 45, 48, 50, 69, 70, 74, and 75
The Appellant argued claims 33, 41-43, 45, 48, 50, 69, 70, 74, and 75
as a group. App. Br. 22-23. We select claim 33 as the representative claim
for this group, and the remaining claims 41-43, 45, 48, 50, 69, 70, 74, and 75
stand or fall with claim 33. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The Appellant’s argument, regarding claim 33, appears to rely on the
arguments made in challenging the rejections of claims 1 and 17. For the
same reasons we found the arguments challenging the rejection of claims 1
and 17 unpersuasive as to error in the rejection, we find them unpersuasive
as to error in the rejection of claims 33, 41-43, 45, 48, 50, 69, 70, 74, and 75.

Appeal 2008-002402
Application 10/621,294

19
Claims 34-36 and 38-40
The Appellant argued claims 34-36 and 38-40 as a group. App. Br.
23. We select claim 34 as the representative claim for this group, and the
remaining claims 35, 36, and 38-40 stand or fall with claim 34. 37 C.F.R. §
41.37(c)(1)(vii) (2007).
The Appellant states that the “[a]rguments regarding claim 2 above
apply to these claims.” App. Br. 23. For the same reasons we found the
arguments challenging the rejection of claim 2 unpersuasive as to error in
the rejection, we find them unpersuasive as to error in the rejection of claims
34-36 and 38-40.

Claim 37
The Appellant states that the “[a]rguments regarding claim 5 above
apply to this claim.” App. Br. 23. For the same reasons we found the
arguments challenging the rejection of claim 5 unpersuasive as to error in
the rejection, we find them unpersuasive as to error in the rejection of claim
37.

Claims 44, 46, 47, 71, and 72
The Appellant argued claims 44, 46, 47, 71, and 72 as a group. App.
Br. 23. We select claim 44 as the representative claim for this group, and
the remaining claims 46, 47, 71, and 72 stand or fall with claim 44. 37
C.F.R. § 41.37(c)(1)(vii) (2007).
The Appellant states that the “[a]rguments regarding claims 12, 14,
and 15 above apply to these claims.” App. Br. 23. For the same reasons we
Appeal 2008-002402
Application 10/621,294

20
found the arguments challenging the rejection of claim 12 unpersuasive as to
error in the rejection, we find them unpersuasive as to error in the rejection
of claims 44, 46, 47, 71, and 72.

Claims 59 and 61
The Appellant argued claims 59 and 61 as a group. App. Br. 23. We
select claim 59 as the representative claim for this group, and the remaining
claim 61 stands or falls with claim 59. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The Appellant states that the “[a]rguments regarding claim 17 above
apply to these claims.” App. Br. 23. For the same reasons, we found the
arguments challenging the rejection of claim 17 unpersuasive as to error in
the rejection, we find them unpersuasive as to error in the rejection of claims
59 and 61.

Claim 60
The Appellant states that the “[a]rguments regarding claim 33 above
apply to this claim.” App. Br. 24. For the same reasons we found the
arguments challenging the rejection of claim 33 unpersuasive as to error in
the rejection, we find them unpersuasive as to error in the rejection of claim
60.

Claim 76
The Appellant argued claim 76 at App. Br. 24. The Appellant’s
argument appears to rely on the arguments made in challenging the
rejections of claims 1 and 17. For the same reasons we found the arguments
Appeal 2008-002402
Application 10/621,294

21
challenging the rejection of claims 1 and 17 unpersuasive as to error in the
rejection, we find them unpersuasive as to error in the rejection of claim 76.

CONCLUSION
We conclude that the Appellant has not shown that the Examiner
erred in rejecting claims 1-76 under 35 U.S.C. §103(a) as being unpatentable
over Henson, IBM, and Motomiya.

DECISION
The decision of the Examiner to reject claims 1-76 is affirmed.

AFFIRMED

mev

JEFFREY C. HOOD
MEYERTONS, HOOD, KIVLIN, KOWERT & GOETZEL PC
P.O. BOX 398
AUSTIN TX 78767