Appeal 2007-0647
Application 10/421,366
pressing the symbol or picture representing the item . . . ” (DiPietro, ¶ 0042,
Fig. 5, emphasis added). DiPietro also teaches “the customer verifies that
the items she wishes to purchase are correctly entered by viewing an
itemized list [i.e., text description] on the electronic display.” (See DiPietro,
¶ 0062). The Examiner merely relies upon the tertiary Witkowski reference
for its teaching of wirelessly downloading menu data to a vehicle display
system in a car (See Answer 5; see also Witkowski, ¶ 0053, Fig. 4).
Appellants’ “teaching away” argument seems based on the theory that
the rejection proposes to combine one or more embodiments of the invention
described by August with one or more embodiments of the inventions
described by DiPietro and Witkowski. However, we find the Examiner’s
reliance upon DiPietro and Witkowski is based on showing what an artisan
knew at the time of the invention about wireless transmission of menu data
(as taught by Witkowski) where such menu data includes text descriptions
and associated images (as taught by DiPietro). Our reviewing court has
stated: “[t]he use of patents as references is not limited to what the patentees
describe as their own inventions or to the problems with which they are
concerned. They are part of the literature of the art, relevant for all they
contain.” In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (quoting In re
Lemelson, 397 F.2d 1006, 1009 (CCPA 1968)).
Here, the Examiner is not relying upon the DiPietro reference in its
entirety. Moreover, we find at least one embodiment in each reference that
is directed to facilitating transactions in a fast-food, drive-through restaurant
environment (See e.g., August ¶0021-0022, DiPietro ¶0041, and Witkowski
¶0053). Thus, we find Appellants’ “teaching away” argument unavailing.
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