Appeal No. 2003-1031 Page 13
Application No. 09/050,841
Independent claim 10 recites in pertinent part the following limitations: "using the
intermediary application, that [sic] is disposed to receive transmissions exchanged
between said client and said server. . . ." Independent claims 30 and 47 recite similar
limitations. Giving claims 10, 30, and 47 their broadest, reasonable construction, the
limitations require that an intermediary application receive transmissions exchanged
between a client and a server.
2. Obviousness Determination
"In rejecting claims under 35 U.S.C. Section 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness." In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992)). "'A prima facie case of obviousness is
established when the teachings from the prior art itself would . . . have suggested the
claimed subject matter to a person of ordinary skill in the art.'" In re Bell, 991 F.2d 781,
783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993) (quoting In re Rinehart, 531 F.2d 1048,
1051, 189 USPQ 143, 147 (CCPA 1976)).
Here, we agree with the appellants that "the discussion of the tracking program
reveals that it does not act as an intermediary between client and either of the Servers,
but rather initiates its own, independent communications with one of the servers. . . ."
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