Appeal 2006-2109
Application 10/680,678
1 As to teaching away and rendering unsuitable for intended purpose, the
2 Appellant is confusing the divergence of promotional campaigns with functional
3 incompatibility. Although the story behind the promotional campaign in Helbling
4 may differ from the Appellant’s, the actual steps in implementing the campaigns
5 are fundamentally the same, both do no more than sell a meal and transfer part of
6 the amount collected to a charity. Thus, the procedure is essentially the same in
7 each and we cannot say that Helbling teaches away from the claimed invention or
8 that the claimed subject matter would render Helbling unsuitable for its intended
9 purpose.
10 The Appellant next contends that Helbling itself teaches away from retaining a
11 processing fee from the donation. The claim is broader than this, and encompasses
12 no retention of any fees, because a part is not necessarily less than the whole. That
13 is, a whole is part of itself. This is technically supported by basic set theory in
14 which a set is a subset of itself. Furthermore, even if the claim were construed
15 such that a part were less than the whole, we agree with the Examiner of the
16 notoriety of retaining an administrative fee, to the extent so retaining a fee would
17 be a predictable variation of Helbling.
18 Thus, the Examiner has shown that all of the claim elements, are shown by the
19 combination of Helbling and Burke, or they would be predictable variations of
20 Helbling and Burke, and that it would have been obvious to a person of ordinary
21 skill in the art to have combined Helbling and Burke to form the claimed subject
22 matter.
23
24 Claims 7-10 and 15-18 rejected under 35 U.S.C. § 103(a) as obvious over Helbling
25 and Burke.
17
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