Appeal 2007-0987
Application 09/810,992
(“in the absence of evidence to support this speculation, we do not find
appellant’s argument persuasive”).
Turning to the merits of the 35 U.S.C. § 102(a) rejection of claims 18-
20 based on the disclosure of Forecast Pro, the Examiner indicates (Answer
3) how the various limitations are read on the disclosure of Forecast Pro. In
particular, the Examiner directs attention to the second full paragraph
(designated by the Examiner as “item 1”) on page 1 of Forecast Pro.1
According to the Examiner (id.), the described “historic data,” “expert
system,” and “forecasting technique” selection corresponds to the claimed
“profile element,” “arbiter,” and “personalization engine” selection.
In our view, the Examiner’s analysis is sufficiently reasonable that we
find that the Examiner has as least satisfied the burden of presenting a prima
facie case of anticipation. The burden is, therefore, upon Appellants to come
forward with evidence and/or arguments which persuasively rebut the
Examiner’s prima facie case. Only those arguments actually made by
Appellants have been considered in this decision. Arguments which
Appellants could have made but chose not to make in the Briefs have not
been considered and are deemed to be waived; see 37 C.F.R.
§ 41.37(c)(1)(vii).
Appellants’ response asserts that the Examiner has not shown how
each of the claimed features is present in the disclosure of Forecast Pro so as
to establish a prima facie case of anticipation. Our review of Appellants’
arguments (Br. 7-8; Reply Br. 2-3), however, reveals that Appellants have
1 The Examiner’s statement of the grounds of rejection cites various passages
from Forecast Page and designates them as “item” numbers, i.e., “item 1,”
“item 2,” etc. Appellants’ arguments also refer to these item numbers and
we will also in this decision.
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