Appeal No. 2004-1828
Application No. 09/094,949
advertisement (brief, page 6). To further distinguish the claims
over Kohda, Appellants contest the Examiner’s characterization of
the user’s clicking the links as the claimed receiving from an
advertiser Web site feedback representing user transactions at
the advertiser Web site (brief, page 6; reply brief, page 2).
In response to Appellants’ arguments, the Examiner concedes
that selecting the advertisement based on the advertiser feedback
is indeed missing in Kohda (answer, page 10), and argues that
Harvey or Cespedes provide the missing feature (answer, page 11).
However, the Examiner’s rebuttal requiring Appellants to explain
why Kohda’s selection of advertisements could not be based at
least in part upon advertiser feedback is misplaced. Rather than
addressing how the database marketing of Cespedes or Harvey would
have suggested selecting advertisements based at least in part
upon advertiser feedback, the Examiner asserts that:
If the advertisers are aware and can tailor their
advertisement, there is no apparent reason why the system
and method could not be modified to utilize information
already obtained by the system/method as set forth under the
103 rejections.
(Answer, page 19)
It is the Examiner, and not Appellants, who has the initial
burden of establishing a prima facie case of obviousness.
Cespedes, specifically in the portions relied on by the
Examiner (answer, pages 5 & 6), relates to targeting product
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