Appeal 2007-0209
Application 10/021,621
also In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984). The Examiner can satisfy this burden by showing that some
objective teaching in the prior art or knowledge generally available to one of
ordinary skill in the art suggests the claimed subject matter. In re Fine, 837
F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Only if this initial
burden is met does the burden of coming forward with evidence or argument
shift to the Appellants. Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444. See
also Piasecki, 745 F.2d at 1472, 223 USPQ at 788. Thus, the Examiner
must not only assure that the requisite findings are made, based on evidence
of record, but must also explain the reasoning by which the findings are
deemed to support the Examiner’s conclusion.
ANALYSIS
As set forth above, representative claim 23 requires the expected rate
of lost opportunity to the user resulting from not reviewing the message to
be expressed as a function of time. Similarly, Losee teaches that the cost to a
user for reviewing a message can be expressed in terms of an economic loss
ensuing from information overload when that cost exceeds the cost of not
reviewing the message. This information overload translates into the
additional time that the user must spend reviewing the extraneous
information in the message. This additional time lost by the user in turn
translates into a time period during which the user could have pursued other
opportunities. Hence, we find that Losee implicitly teaches that the time not
spent by the user to review the extraneous information translates into an
opportunity for the user as a function of time. Therefore, after considering
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