Appeal No. 2006-1978
Application No. 10/027,572
With respect to independent claim 1, Appellants’ arguments in response to
the Examiner’s 35 U.S.C. § 103(a) rejection assert a failure to establish a prima
facie case of obviousness since all of the claimed limitations are not taught or
suggested by the applied prior art references. After careful review of the
disclosures of Alperovich and Lehto in light of the arguments of record, we are in
general agreement with the Examiner’s position as stated in the Answer.
Initially, Appellants attempt (Brief, pages 12, 13, 16, 17, and 20-22) to draw
a distinction between the claimed invention and the cited prior art by asserting that,
unlike the claimed invention, Alperovich pre-pends a new header onto a standard
SMS message only on or after the user creates the payload for the message.
Appellants make similar arguments (Brief, pages 14, 15, 18, and 19) with respect
to Lehto by contending that the extension data in Lehto is embedded into the SMS
message only after a user creates the “funny” which fills the message payload.
After reviewing the language of appealed independent claim 1 in light of
Appellants’ arguments, however, we find that such arguments are not
commensurate with the scope of the claim. As pointed out by the Examiner
(Answer, pages 13 and 14), there is no time line set forth in the claim for when or
which data is to be used in creating the SMS message. Similarly, to whatever
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