Appeal No. 2004-1179
Application No. 09/127,284
Reference is made to the brief (paper number 39) and the
answer (paper number 40) for the respective positions of the
appellant and the examiner.
OPINION
We have carefully considered the entire record before us,
and we will reverse the indefiniteness rejection of claims
23 through 28 and 34 through 39, and sustain the obviousness
rejections of claims 23 through 39.
Turning first as we must to the indefiniteness rejection,
the examiner is of the opinion (answer, page 4) that the claims
are indefinite because “[t]he phrase ‘a specific algorithm’ is
vague and indefinite because it implies that the claimed
invention utilizes a particular algorithm, but such an algorithm
is never expanded upon in the claims.” Appellant’s disclosure
(specification, page 19) that “it will be clear to the skilled
artisan that there are a wide variety of specific algorithms that
might be developed within the spirit and scope of the present
invention in order to determine potential profitability,
depending on such issues as the nature of products and services,
the nature of the enterprise, and many other factors” coupled
with appellant’s argument (brief, pages 9 and 15) that an
algorithm must be specifically chosen to calculate “potential
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