Appeal 2007-0647
Application 10/421,366
“an order selection menu comprising a text description and an image
associated with at least one item on the order selection menu,” as discussed
supra (claim 1, emphasis added). Here, Appellants have failed to explain
how the recited “merchant station” and “order selection menu,” are allegedly
not taught by the Examiner’s proffered combination of August, DiPietro,
and Witkowski (See App. Br. 7). Thus, we find Appellants have failed to
comply with the requirements of 37 C.F.R. § 1.111(b) by merely reciting the
language of the claim and asserting that such language is not taught by the
reference(s). Therefore, we conclude that Appellants have not shown error
in the Examiner’s prima facie case of obviousness. Accordingly, we sustain
the Examiner’s rejection of independent claim 1 as being unpatentable over
August, in view of DiPietro and Witkowski.
Independent claims 20 and 37
We consider next the Examiner’s rejection of independent claims 20
and 37 as being unpatentable over the teachings of August in view of
DiPietro and Witkowski.
Combinability under section 103
At the outset, we find Appellants’ “teaching away” and hindsight
arguments unavailing for the same reasons discussed supra with respect to
independent claim 1.
Elements under section 103
Appellants contend the proffered combination of August, DiPietro,
and Witkowski fails to teach and or suggest the following limitations recited
in claim 20 (App. Br. 8):
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