Appeal No. 2005-1722
Application 10/420,901
the award points of the claimed invention are intended to
encourage customer loyalty (Br12).
The examiner responds that Cameron teaches a promotional
club at column 20, lines 19-24, and "[b]ecause the loyalty
purpose of a promotional club is enhanced by a system of award
points, it would have been obvious to one of ordinary skill in
the art ... to add award points to the system of incentives
taught by Cameron" (EA5). The examiner discusses that it is
difficult, if not impossible, to conduct a promotional/loyalty
club without award points and gives the example of frequent flyer
clubs in which mileage points are awarded for travel (EA9). The
examiner admits that no evidence is cited, but states (EA10):
[T]he examiner is arguing that, given that Cameron et al.
teaches awards obtainable through promotional clubs, one of
ordinary skill in the art would find [sic, have found] it
obvious to express these rewards in terms of award points.
In lieu of evidence, the examiner has presented logic
demonstrating that such award points are a practical
necessity for a common class of awards obtained through
promotional clubs, namely awards of significant value, such
as airline trip awards offered through frequent flyer clubs.
That is, the examiner takes Official Notice that the existence of
frequent flyer clubs was "well known" as a type of promotional
club having award points.
Appellant argues that the examiner now relies on alleged
"common knowledge," which constitutes a new ground of rejection
(RBr2). It is argued that the "marketing promotions" of Cameron
are not awards, but are incentives intended to influence a user
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