Appeal No. 2004-0786
Application No. 08/935,116 Page 13
with the burden of presenting a prima facie case of obviousness.
Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992). If that burden is met, the burden then shifts
to the applicant to overcome the prima facie case with argument
and/or evidence. Obviousness is then determined on the basis of
the evidence as a whole. See id.; In re Hedges, 783 F.2d 1038,
1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745
F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re
Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
The examiner's position (answer, pages 4 and 5) is that
Creekmore does not disclose:
Responding to entry, during a current transaction,
of said unique identification code for a customer
by analyzing said transaction data of the customer,
including data in said database from prior transactions,
with or without data from the current transaction,
in order to generate a response which is a function
of said data in said database from prior transactions,
and by supplying said response to said terminal during
said current transaction in which said unique
identification code is entered, said response
including information for effecting a targeted
promotion to the customer.
To make up for this deficiency of Creekmore, the examiner turns
to Off for a teaching of these features, relying upon col. 9,
lines 15-60 of Off. Appellants assert (brief, page 20) that
because Off is not directed to a credit pre-verification system,
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