Appeal No. 2002-2174
Application No. 09/263,166 Page 25
Johnson et al. discloses that the existence message or the
publishing mechanism includes a reference to one or more
locations on the network. The examiner's position is set forth
on page 7 of the answer.
Claim 97 recites that "the incentive existence message
comprises a reference to one or more parameters of the
incentive." Johnson discloses (col. 1, lines 56-58) that the bid
includes the rate the carrier charges to transmit the call. From
this disclosure of Johnson, we find that the incentive existence
message include a reference to the cost of transmitting the call,
which is a disclosure of a parameter of the incentive (bid).
Accordingly, the rejection of claim 97 under 35 U.S.C. § 102(b)
is affirmed.
We turn next to the rejection of claims 3, 15, 26, 42-51,
54, 57, 72, 79, 80, 84-91, 96 and 98-102 under 35 U.S.C.
§ 103(a).
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine, 837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
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