Appeal No. 2004-1463
Application 09/401,221
Appellant responds that the WAN taught by Brendel does not
suggest the Internet as claimed [reply brief].
We will not sustain the examiner’s rejection of
claims 1-6 because the examiner has failed to establish a prima
facie case of obviousness. Although we do not agree with
appellant’s argument regarding the recitation of the Internet in
the claimed invention, we do agree with appellant that the record
in this case does not support the combination of Brendel and
Leighton. With respect to the question of the use of the
Internet, appellant relies on the rule that a genus (WAN) cannot
reject a species (the Internet). The correct rule, however, is
that a genus does not necessarily reject a species. A genus may
not reject a species when the species (as claimed) may be an
unknown member of the genus. However, if the species is a known
member of the genus, then the species may be obvious over the
teaching of the genus. In this case, it is well known in this
art that the Internet is considered to be one form of a WAN.
Therefore, appellant’s argument that the WAN of Brendel would not
have suggested the claimed Internet is not persuasive.
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