Appeal 2007-0635
Application 10/176,598
[T]here is no disclosure or suggestion that Ward could keep track of
the "total amount of time" a user plays back a file, as stated by the Examiner
in the Final Rejection, because "the total amount of times a user plays back a
media file" is not the same thing as in Claim 2 of keeping track of the "total
amount of time" a media file is played back. Keeping track of whether a
media file was played back of not (see Ward, col. 8, lines 28-40) where
playback of media files in [sic, is] performed serially in view of a play list,
does not disclose or suggest that such media files can be played back
multiple times, or such multiple plays are capable of being tracked, without
resetting a play list.
Appeal Br. 5.
The level of ordinary skill in the pertinent art.
10. Neither the Examiner nor Appellant has addressed the level of ordinary skill
in the pertinent art of electronic commerce. We will consider Ward as
representative of the level of ordinary skill in the art. See Okajima v. Bourdeau,
261 F.3d 1350, 1355, 59 USPQ2d 1795, 1797 (Fed. Cir. 2001) (“[T]he absence of
specific findings on the level of skill in the art does not give rise to reversible error
‘where the prior art itself reflects an appropriate level and a need for testimony is
not shown.’”).
Secondary considerations.
11. Appellants presented no evidence of secondary considerations of non-
obviousness for our consideration.
C. PRINCIPLES OF LAW
Claim construction
1. Claims define that which Appellants regard to be their invention. In re
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