Appeal No. 2006-1523
Application No. 09/793,687
of the complainer and the respondent with terms of the agreement.” As appellant has not
convinced us of error in the examiner’s rejection of claim 22 and the claims grouped
therewith, we sustain the examiner’s rejection of claims 22 through 24.
Rejection of claims 4, 11, and 25 under 35 U.S.C. § 103 (a) as being
unpatentable over Burchetta in view of Sloo, “Online Mediation Offered for
resolving E-Commerce Disputes” and Eisen.
Appellant’s arguments, on pages 20 through 22 of the brief, group claims 4, 11
and 25 together. Appellant argues, on page 20 of the brief, that Burchetta teaches away
from being modified to make use of emotional information. Appellant states that
Burchetta teaches an advantage of the system is that it avoids direct communication
between the parties and “[w]astful personality conflict[s], fruitless and unnecessary
disagreements, posturing and positioning cannot occur.” Further, on page 21 of the brief
appellant argues, “Online Mediation Offered for resolving E-Commerce Disputes” and
Eisen both discuss mediation where there is a human mediator who receives the
emotional information and performs the emotional management.
We concur with the appellant. Our reviewing court has said “[A] reference may
be said to teach away when a person of ordinary skill, upon reading the reference, would
be discouraged from following the path set out in the reference, or would be lead in a
direction divergent from the path that was taken by the applicant. The degree of teaching
away will of course depend upon the particular facts; in general, a reference will teach
away if it suggests that the line of development flowing from the reference’s disclosure is
unlikely to be productive of the result sought by the applicant.” In re Gurley, 27 F.3d
551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994) (citing United States V. Adams, 383
U.S. 39, 52, 148 USPQ 478, 484 (1966)). However, a reference that “teaches away”
does not per se preclude a prima facie case of obviousness, but rather the “teaching
away” of the reference is a factor to be considered in determining unobviousness. Id 27
F.3d at 552, 31 USPQ 2d at 1132. We find, as appellant asserts that one of the stated
purposes of Burchetta is to deal exclusively with the bottom line, and prevent personality
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