Appeal 2007-0789
Application 09/810,063
Differences between the Prior Art and the Claimed Invention
39. The Examiner found that Odlyzko discloses all the steps of the claimed
method but “does not specifically teach that said calculated usage amount includes
an amount of time that the user computer system uses the service.” (Answer 5).
The Examiner relies on Saari to show that determining charges for usage of a
network connection calculated on the basis of connection time was known in the
art. Accordingly, the Examiner takes the position that each limitation of the claim
is disclosed in one of the cited references.
40. The difference between the prior art and the claimed invention is that the
claim combines subject matter which is separately disclosed in the references.
The level of ordinary skill in the pertinent art.
41. Neither the Examiner nor Appellants has addressed the level of ordinary
skill in the pertinent art of using optimization models to customize commercial
operations. We will consider Odlyzko and Saari 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’”).
Objective evidence of nonobviousness
42. Appellants presented no evidence of secondary considerations of non-
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