Appeal No. 2001-1764 Page 7
Application No. 08/784,670
than sideline speculation,” (Appeal Br. at 10), we are persuaded that disclosure
teaches, or at least would have suggested, arranging menu items based on at least two
heuristics, one of which is frequency, recency, or time-of-day. Therefore, we affirm the
rejection of claim 43 and of claims 1, 5, 7, 9, 16, 17, 25, 29, and 31-33, which fall
therewith.
II. Claims 10-12 and 36
The examiner asserts, "Reed teaches system can be implemented either
separately or together using three heuristics factors as frequency, recency, and
previous fails commands (see abstract, and col.4, line 50-61), ‘This frequency heuristic
could also be made dependent on the time of day...’, (col.5, line 28-30)." (Final
Rejection at 2.) The appellant argues, "none of the elements within the Markush group
have been disclosed, taught, or otherwise suggested by Reed." (Appeal Br. at 5.)
Representative claim 36 specifies in pertinent part the following limitations: "said
menu having menu items arranged based on user control, wherein said user control is
selected from the set consisting of automatic recency control, automatic frequency
control, automatic time of day control, manual ranking control, and manual time of day
control. . . .” Giving the claim its broadest, reasonable construction, the limitations
merely require arranging menu items based on frequency or recency.
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