Appeal No. 2005-0956 Page 12
Application No. 09/342,866
II. Whether the Rejection of Claims 11, 25, and 39 Under
35 U.S.C. § 103 is proper?
It is our view, after consideration of the record before us, that the evidence
relied upon and the level of skill in the particular art would not have suggested to
one of ordinary skill in the art the invention as set forth in claims 11, 25, and 39.
Accordingly, we reverse.
With respect to dependent claims 11, 25, and 39, we note that the
Examiner has relied on the Goldhaber reference to teach “wherein the price is
determined at least partially upon participation of the buyer in an auction.” [See
the Final rejection at page 6]. Appellant argues this is in error at pages 24-25 of
the brief. We find Appellant's argument unpersuasive. Claim 11 is not restricted
as to the type of buyer participation in the claimed auction. In Goldhaber, the
buyer (viewer) participates by electing to have advertisers bid for their attention
(col. 4, lines 65-66). We find that this disclosure of Goldhaber meets the
limitation of determining price based on buyer participation in an auction as
recited in claim 11.
We note however, Goldhaber fails to cure the deficiencies of Marino noted
above with respect to claim 1. Therefore, we will not sustain the Examiner’s
rejection under 35 U.S.C. § 103 for the same reasons as set forth above.
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