Appeal No. 2006-1573 Page 3
Application No. 09/818,175
second words is based on how frequently the corresponding items are accessed or
viewed.”
Appellants argue (brief, pages 5 and 6) that the Ortega system takes into account
the popularity of a book, music, or an electronic device to a plurality of users, as opposed
to a single user, when determining the popularity or frequency of purchase of the book,
music or electronic device. Appellants’ argument to the contrary notwithstanding,
nothing in the claims on appeal precludes the system and method described by Ortega
from determining the frequency of viewing or purchase of a particular piece of music by
a plurality of users. The claims on appeal state that the program has been played by the
entertainment system, and not by the user.
Appellants argue (brief, page 4) “while Ortega’s system might be used to search
for a multimedia program for purchase (Ortega 5:55-65), Ortega’s system does not play a
multimedia program.” We disagree. Ortega specifically states that the item of interest
(e.g., music by a certain artist) is the “best selling or most frequently viewed” piece of
music (Abstract; column 5, lines 1, 2 and 55 through 59; column 8, lines 47 through 57).
Music that is capable of being “frequently viewed” is in a “multimedia program” format
(i.e., audio as well as visual) that is played on an entertainment system (e.g., a DVD
player or VCR).
Thus, we find that Ortega describes all of the limitations of claims 1, 11 and 21.
Accordingly, we will sustain the obviousness rejection of claims 1, 11 and 21. In
affirming a multiple reference rejection under 35 U.S.C. § 103, the Board may rely on
one reference alone without designating it as a new ground of rejection. In re Bush, 296
F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA 1961); In re Boyer, 363 F.2d 455, 458,
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