Appeal No. 2006-2225
Application No. 09/815,439
grouping classes of items and specific items reasonably represents depth and breadth
information relating to the item as claimed.
Although Herz anticipates at least claims 1 and 24, obviousness rejections can
nevertheless be based on references that happen to anticipate the claimed subject matter.
In re Meyer, 599 F.2d 1026, 1031, 202 USPQ 175, 179 (CCPA 1979). Moreover, in
affirming a multiple-reference rejection under 35 U.S.C.
§ 103, the Board may rely on less than the total number of references relied on by the
examiner. In re Bush, 296 F.2d 491, 496, 131 USPQ 263, 266- 67 (CCPA 1961); In re
Boyer, 363 F.2d 455, 458 n.2, 150 USPQ 441, 444 n.2 (CCPA 1966). Under this analysis,
the teachings of Kiger are merely cumulative to those found in Herz.
Notwithstanding the examiner’s concession that Herz allegedly did not teach that
the sub-items represented depth and/or breadth information in the rejection of claims 1 and
24,1 the examiner nonetheless apparently recognizes that Herz discloses such a limitation
as evidenced by the examiner’s discussion on page 26 of the answer. In that discussion,
the examiner refers to specific passages within Herz referring to depth and breadth
information [answer, page 26]. The examiner appears to rely on Kiger to “supplement”
Herz to merely explain what the terms depth and breadth of information mean [id.].
Although the examiner’s reliance on Kiger is, in our view, cumulative for the reasons
1
1See page 6, supra, of this opinion. See also answer, page 4.
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