Appeal No. 2006-3122
Application No. 10/247,769
element of a claimed invention as well as disclosing structure which is capable of
performing the recited functional limitations. RCA Corp. v. Applied Digital Data
Systems, Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984); W.L.
Gore and Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1554, 220 USPQ 303,
313 (Fed. Cir. 1983). Only those arguments actually made by appellants have
been considered in this decision. Arguments which appellants could have made
but chose not to make in the briefs have not been considered and are deemed to
be waived [see 37 CFR § 41.37(c)(1)(vii)(2004)].
The examiner has indicated how the claimed invention is deemed to be
fully met by the disclosure of Takatori [answer, pages 3-10]. Regarding the
independent claims, appellants argue that although Takatori counts and displays
accesses to web sites, Takatori does not count and display the number of times
that a specific link was selected to access the site [brief, pages 7 and 8; reply
brief, page 4]. In short, merely displaying the number of times that a web site
was visited has nothing to do with how the site was accessed -- specifically, how
many times the corresponding link was selected to access the site [reply brief,
page 4].
The examiner argues that appellants’ arguments are not commensurate
with the scope of the claims that merely call for viewable information regarding
selection of the link – not the number of times that a specific link was selected
[answer, page 17]. The examiner further notes that the total number of web site
accesses in Fig. 4 of Takatori includes link accesses that occur both within and
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