Appeal 2007-0647
Application 10/421,366
indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355
(Fed. Cir. 1998)). Therefore, we look to Appellants’ Briefs to show error in
the proffered prima facie case.
ANALYSIS
Independent claim 1
We consider first the Examiner’s rejection of independent claim 1 as
being unpatentable over the teachings of August in view of DiPietro and
Witkowski.
Combinability under § 103
Appellants contend the preloaded kiosk user menu of DiPietro teaches
away from transmitting a menu to a customer device, as taught by the
primary August reference (App. Br. 6). Appellants contend that since
Witkowski’s teaching of transmitting a menu is similar to what August
teaches, it follows that DiPietro also teaches away from a combination of
August and Witkowski (App. Br. 7). Appellants further contend that the
Examiner has improperly relied upon hindsight in formulating the rejection
(Id.).
We disagree. We note the Examiner merely relies upon the secondary
DiPietro reference for its teaching of an electronic menu (and associated
menu data) that the Examiner finds meets the recited limitation of an “order
selection menu comprising a text description and an image associated with
at least one item on the order selection menu” (claim 1; see also Answer 4;
emphasis added). We note that DiPietro expressly teaches: “the electronic
menu display 62 is a touch screen and the customer enters her order by
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