Appeal 2007-0025 Page 31
Application 09/792,151
argue that the rationale the Examiner has used to combine the prior art teachings to
reach the claimed invention is conclusory. We do not agree. The rationale the
Examiner provides is rationally unpinned. In re Kahn, 441 F.3d 977, 988, 78
USPQ2d 1329, 1336 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.”) It is well-accepted that advertisements encourage
purchases of an advertised product. Those that do a more effective job at getting
purchases for the product advertised might be expected to be charged better rates
for their advertisements. Appellants argue that "better rates" is subjective and
might include an advertiser paying a higher rate as punishment for their ability to
create or write an effective advertisement. However, the claim makes no
distinction as to the level of advertising rates that should be applied. Accordingly,
the claim encompasses determining advertising rates that would require the more
effective advertisers to pay a “better” higher rate. Appellants also argue that an
advertiser might not want to share the sales information with another company and
thus defeat any determination of advertising rates according to sales and earning
for the product or service according to the advertising survey. While that
possibility might exist, the more likely probability is that sales information can be
obtained through other sources. The claim leaves open the source of the sales
information. The claim requires only that the sales information exist so that
advertising rates can be determined. Where that information can be obtained is left
open and need not be obtained from the company doing the advertising.
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