Appeal No. 2006-0597 Page 7
Application No. 09/682,876
references as support for this “Official Notice” (id.). However,
since these references are not listed in the prior art of record or
the statement of the rejection (Answer, page 2, ¶(8), and page 3,
¶(9)(b)), we will not consider these references as part of the
examiner’s evidence of obviousness. See In re Hoch, 428 F.2d 1341,
1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
Finally, although appellant admits that zip codes would
inherently have been part of the mailing address required by
Stewart (Reply Brief, page 10), the examiner has not established
why one of ordinary skill in this art would have based the
selection of a reseller on the postal address code to determine the
closest marketing territory when the system of Stewart depends only
on “mobile” users (Brief, page 23; Reply Brief, page 10). The
examiner’s citations from Stewart (Answer, page 4) do not establish
any correlation of a reseller with the postal address code and a
marketing territory.
For the foregoing reasons and those stated in the Brief and
Reply Brief, we determine that the examiner has not established a
prima facie case of obviousness in view of the reference evidence.
Accordingly, we need not consider the Declaration under 37 CFR
§ 1.132 filed by Mark R. Duchow (Reply Brief, pages 8-9). See In
re Geiger, 815 F.2d 686, 688, 2 USPQ2d 1276, 1278 (Fed. Cir. 1987).
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