Appeal No. 2001-2326
Application No. 08/752,909
Claims 13, 14, 17, 23, 26, and 38 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Mueller and Sherrod.
Claims 15, 16, 24, 25, 36, and 37 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Mueller, Sherrod, and Hejna.
We refer to the Final Rejection (Paper No. 15) and the Examiner’s Answer
(Paper No. 22) for a statement of the examiner's position and to the Brief (Paper No.
21) for appellants’ position with respect to the claims which stand rejected.
OPINION
The instant independent claims (1, 18, and 28) stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Mueller. (Answer at 3-4.) Appellants argue (Brief at
10-11) that, contrary to the examiner’s findings, Mueller does not teach apportioning
“earnings” as the term is defined by appellants. Further, appellants allege that Mueller
does not teach accumulating earnings or making a selection based on the accumulated
earnings.
Appellants also contest the examiner’s finding that Mueller teaches adding a
number to accumulated earnings. According to the rejection (Answer at 3), Mueller
teaches adding a number “M” to accumulated earnings, with the number “M” shown in
the equation at column 6, line 34 of the reference. Appellants argue that “M” is a
constant representing the highest value of priority, rather than relating to adding a
number to accumulated earnings as claimed. The examiner, in response, reiterates
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