Appeal No. 2004-2085
Application 09/272,542
Harrington discloses that the auction has a specified start
time and end time and that bids must be submitted during this
time (col. 10, lines 32-35). However, there is no teaching in
Harrington that the exposure time is specified by the Issuer in
the offer. It is simply speculation whether the exposure time is
specified by the Issuer or the auctioneer or some other entity.
It is improper to resort to speculation or unfounded assumptions
to supply deficiencies in the factual basis for a rejection. See
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Therefore, we find that Harrington does not teach
"contra-side orders," the orders specifying a "response time,"
and that the system "determines a match to said first order with
... contra-side orders." The anticipation rejection of claim 33
and its dependent claims 34 and 39 is reversed. Since no other
art is applied to dependent claims 35-38, the rejection of these
claims for obviousness is also reversed.
Group II: claims 1, 4-6, 9, 10, 13, 24-32, 73, and 75
Claim 1 is representative.
Appellants argue that Harrington does not suggest an order
because the offer disclosed by Harrington does not possess the
features of an order (Br16).
This argument has been addressed and found to be
unpersuasive in the analysis of claim 33. Although it is not
clear that the two auctions shown in Figs. 10 and 11 of
- 10 -
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