Appeal No. 2005-0956 Page 14
Application No. 09/342,866
IV. Whether the Rejection of Claims 29, 31, and 37 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 29, 31, and 37.
Accordingly, we reverse.
With respect to dependent claims 29, 31, and 37, we note that the
Examiner has relied on the Allotafun reference to teach the use of video games
as part of a promotion/marketing. [See the Final rejection at page 16]. Appellant
argues at pages 25-26 of the brief that the rejection fails to show scaling the price
to a performance while participating in a video game. We find Appellant's
argument unpersuasive. Claim 29 is not restricted as to “the performance” being
the performance (or score) in the video game. Rather, claim 29 merely requires
that “the PDA is a video game.” The Examiner has shown that it is known to
provide a price discount based on the performance of attention to advertising,
and Allotafun teaches it is beneficial to do advertising in the form of a video
game. We find that this disclosure of Allotafun meets the limitation of the PDA is
a video game as recited in claim 29.
We note, however, that Allotafun fails to cure the deficiencies of Marino
noted above with respect to claim 1. Therefore, we will not sustain the
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