Appeal No. 2004-1952
Application No. 09/207,954
employed to support the rejection and have had an opportunity to
respond, and have responded, to the real rejection, appellants
are not prejudiced by our treating the rejection as one based on
the combination of Mendler and Riddle and proceeding to decide
the case on its merits.
The instant claims are all directed to a method for a
communication “server” to deliver a marketing message. We agree
with appellants that there is nothing in the disclosure of
Mendler about such a “server” performing the claimed functions.
The examiner responds by referring to page 3, paragraph 4, of
Mendler, wherein a “client-server” is recited. However, this
recitation by the reference clearly refers to a system of Bell-
Atlantic, referenced in the preceding paragraph. Yet, the
examiner is relying on the MCI “Friends and Family” program for
the various claimed steps. There is no indication in Mendler,
especially in the portion regarding MCI’s “Friends and Family”
billing plan, that callers call a server, that that server
queries the caller for telephone numbers of family and friends,
that that server then establishes a conference call between the
caller and one of those family and friend members, and/or that
that server delivers to the caller and to his/her friend or
family member a marketing message during the conference call.
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