Appeal No. 2003-1031 Page 15
Application No. 09/050,841
system with plurality of vendors where each vendors [sic] are not do not [sic] directly
communicate state information with one another so that each vendor only need to deal
with one central party instead of multiple parties." (Id. at 24.) The appellants argue,
"[t]he vendors in Giacoppo are cooperating because they are all running Checkout!
software. Therefore, they are communicating in a proprietary protocol and would have
knowledge of one another." (Supp. Appeal Br. at 18.)
1. Claim Construction
Independent claims 18, 38, and 50 include limitations similar to those of claim 1.
Accordingly, claims 18, 38, and 50 require domains having no knowledge of one
another and being unable to communicate directly state information between
themselves.
2. Obviousness Determination
"[I]t is fundamental that rejections under 35 U.S.C. §103 must be based on
evidence comprehended by the language of that section." In re Grasselli, 713 F.2d
731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983). Official notice may be employed "to
supplement or clarify the teaching of a reference," In re Ahlert, 424 F.2d 1088, 1092,
165 USPQ 418, 421 (CCPA 1970), "perhaps to justify or explain a particular inference
to be drawn from the reference. . . ." Id., 165 USPQ at 421. A noticed fact usually is
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