Appeal No. 2002-2115
Application No. 09/000,709
Further, as pointed out by our reviewing court, we must first determine the scope
of the claim. "[T]he name of the game is the claim." In re Hiniker Co., 150 F.3d
1362,1369, 47 USPQ2d 1523, 1529 (Fed. Cir. 1998). Therefore, we look to the
limitations set forth in independent claim 1.
Independent claim 1 recites “executing the dynamic executable module to
retrieve dynamic content from the network proxy, said execution and retrieval being
transparent to a user of the client device and not interfering with servicing of additional
request for data objects by the user.” [Emphasis added.] Appellants argue that
Simmons fails to teach or suggest “embedding a dynamic executable module . . .” and
“executing the dynamic executable module to retrieve dynamic content from the network
proxy . . . .” (See brief at pages 10 and 11.) The examiner maintains that Simmons
teaches the embedding of executable modules, by embedding bulletins and then
maintains that Simmons does not specifically disclose the dynamic executable module
comprising executable instructions. (See answer at page 3-4.) The examiner further
maintains that Simmons teaches executing the dynamic executable module to retrieve
dynamic content from the network proxy. (See answer at page 4.) We agree with
appellants that Simmons does not teach or fairly suggest embedding an
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