Appeal No. 2004-0786
Application No. 08/935,116 Page 10
obtaining check approval makes clear that the terminal is not at
the point-of-sale. Secondly, the examiner's arguments regarding
equivalence are misplaced as the rejection is not based upon 35
U.S.C.
§ 103(a). By asserting equivalence, the examiner in effect is
taking the position that the reference does not teach the claimed
subject matter, but that an artisan would have recognized the
equivalence between the disclosure of Creekmore and the claim,
and considered the substitution to have been obvious. From all
of the above, we conclude that Creekmore does not anticipate
claim 8. Accordingly, the rejection of claim 8 under 35 U.S.C.
§ 102(b) is reversed. In addition, for the same reasons, we
reverse the rejection of independent claim 9, as well as
dependent claims 12 and 13.
We turn next to the rejection of claims 33-39 as being
anticipated by Goldman. The examiner's position is set forth on
pages 3 and 4 of the answer. Appellants assert (brief, page 15)
that with respect to claim 33, “Goldman et al. does not disclose
a computer implemented customer database comprising stored
transaction data wherein the transaction data includes ‘dollar
amount of purchases and time period’ as recited in claim 33.”
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