Ex Parte Vincent - Page 9

                Appeal 2007-0271                                                                              
                Application 09/750,948                                                                        

                § 102 rejection based on parachute’s “inherent operating characteristics”),                   
                cited with approval in In re King, 801 F.2d 1324, 1327, 231 USPQ 136, 138                     
                (Fed. Cir. 1986).  Clearly, “data analysis tools” and “executable                             
                instructions” would have been necessary to analyze the customer                               
                information in Net Perceptions’ recommendation engine and a “set of rules”                    
                would have been necessary to then provide agents with “pertinent customer                     
                information and specific purchase recommendations” for a specific                             
                customer.  Appellant has not provided any evidence sufficient to “prove that                  
                the subject matter shown to be in the prior art does not possess the                          
                characteristic relied on.”  In re Swinehart, 439 F.2d 210, 212, 169 USPQ                      
                226, 229 (CCPA 1971), cited with approval in King, 801 F.2d at 1327, 231                      
                USPQ at 138.  Thus, we affirm the Examiner’s § 102(b) rejection of claim 1.                   
                      With respect to claim 11, rejected under § 103(a), Appellant again                      
                argues a single limitation is not met, i.e., "one or more data analysis tools                 
                comprising executable instructions for analyzing said customer data from                      
                said plurality of channels and determining one or more patterns from said                     
                data.”  (Br. 6.)                                                                              
                      We have discussed this limitation with respect to the § 102(b)                          
                rejection, except for the “from said plurality of channels” language.  We find                
                this additional language would have been expressly taught, or at least                        
                suggested, by the combination of Net Perceptions and Andrews.  (See FFs 5,                    
                6.)   One of ordinary skill in the art would have been motivated to use the                   
                disclosed multiple channels, as described in Andrews, to collect data to                      
                analyze buying patterns, as described in both Net Perceptions and Andrews,                    
                and would have had a reasonable likelihood of success.  (See FFs 5, 6, 7.)                    


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