Appeal No. 95-1942
Application 08/135,190
most popular songs) as "premium" selections requiring twice
the normal payment. Because it is the jukebox owner rather
than the customer who decides whether a particular selection
is to have priority status, the rejection of claim 16, which
calls for "determining if the customer has selected a
recording for being prioritized" (our emphasis), cannot be
sustained.
Appellants are incorrect, however, to argue that
each of claims 7 and 17 likewise "makes it clear that the
customer selects the recording for being prioritized"
(original emphasis) (Brief at 9). These claims recite
"determining if the customer has made a prioritized
selection," which is broad enough to read on a customer's5
conscious or unconscious selection of a recording
that has been given priority status by the jukebox owner, as
the examiner suggests when he argues that the references "both
disclose a priority list system wherein a selection can be
chosen (from a list) by the user that is moved to the top of
the playlist" (Final Office action at 3) and also that "the
5The version of claim 7 in the appendix omits the
term "a" from this passage.
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