Appeal 2007-1867
Application 09/864,113
1 Further, the mere fact that a user chooses to associate itself with Odigo does
2 not automatically associate that user with all the other users of Odigo, except in the
3 same sense that all people are associated with each other by being members of a
4 common group, homo sapiens. Clearly the claim cannot support a construction in
5 which any logical, rather than social, connection forms the basis of association.
6 Odigo introduces users who are shoppers who have not previously socialized
7 or interacted with each other (FF 05-0). Thus, these users are shoppers being
8 otherwise disassociated with each other. Therefore we find this Appellants’
9 argument to be unpersuasive.
10
11 Appellants’ Argument (2) that the art is not enabling
12 The Appellants recite that
13 Art cited under 35 U.S.C. § 102(b) must enable the public to
14 practice the invention. If the cited art is an issued U.S. patent,
15 enablement is presumed due to presumption of validity of
16 patents. However, if the cited art is non-patent literature, as
17 Surfing and Archive are, enablement is not presumed.
18 Consequently, if a non-patent literature reference is not
19 enabling, then [the rejection under § 102(b) is improper.]
20 (Br. 11, First full ¶.) The go on to state that “[e]nablement is met only if the
21 public is put into possession of both how to use and how to make the invention, not
22 just install it and use it.” (Br. 11: Third full ¶.)
23 The Appellants are conflating the enablement requirements of 35 U.S.C. §112,
24 first paragraph with the requirements for the public be in possession of prior art
12
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