Appeal 2007-0367
Application 09/782,149
score, not on an attribute value associated with one of the first and second
attributes. Since Hughes fails to disclose each and every limitation of the
claims, Hughes cannot anticipate claims 1 through 3. Accordingly, we will
not sustain the anticipation rejection of claims 1 through 3.
Regarding the obviousness rejection of claims 4 and 7 through 10
over Hughes, Appellant again contends (Br. 7) that Hughes fails to disclose
the claimed third sorting. The Examiner provides no convincing line of
reasoning why it would have been obvious to modify Hughes to sort a third
time based on an attribute value associated with at least one of the first and
second attributes. Accordingly, we cannot sustain the obviousness rejection
of claims 4 and 7 through 10.
Appellant did not argue the combination of Hughes with Powers to
reject claims 5 and 6. However, since the claims depend from claim 1, and
Powers fails to cure the deficiency of Hughes noted supra, we cannot sustain
the obviousness rejection of claims 5 and 6.
Appellant contends (Br. 8) that RFM for Windows teaches the
invention of Hughes in a Windows environment. As such, neither teaches
the claimed third sorting. We agree. Accordingly, we cannot sustain the
obviousness rejection of claims 11 through 13 over Hughes in view of RFM
for Windows.
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new ground of rejection against Appellant's claims 1 through 13 under
35 U.S.C. § 101 as being nonstatutory.
According to the Interim Guidelines for Examination of patent
Applications for patent Subject Matter Eligibility (1300 Off. Gaz. Pat. Office
142 (Nov. 22, 2005)), the first step in determining whether claims are
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