Appeal 2007-1775
Application 09/749,106
passage, which describes offering a lower price for each of a threshold
number of buyers to purchase a single amusement park pass:
Another embodiment of the present invention allows
sellers to set both a minimum number of buyers as well as a
minimum volume of goods or services sold, and allows the
seller to set limits on the amount any one buyer could buy for a
given offer. For example, a seller might offer 500 computer
modems, and specify "maximum of two modems per person".
Alternatively a seller might offer 300 passes to an amusement
park, requiring 300 individual buyers (rather than allowing
more than one pass per any given buyer).
(Pallakoff, col. 11, ll. 25-33.) A further example is: “Our law firm will do
incorporation work for 200 companies, at only $1000 per company” (col. 11,
ll. 40-42). Thus, contrary to Appellants’ arguments, we find Pallakoff
discloses that the price can be based upon a threshold number of purchasers.
Regarding Appellants’ argument that Pallakoff’s “Buying Team” is
not a subscriber group (because a “buyer” in Pallakoff is allegedly different
from a “subscriber”), we find the Examiner has relied upon Bonomi for the
teaching of a program-purchasing subscriber group, as claimed. Our
reviewing court has determined that one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097,
231 USPQ 375, 380 (Fed. Cir. 1986). Here, Pallakoff is relied on to show
that the prior art included a graduated pricing scheme wherein a lower price
is obtained if purchases are made by a threshold number of buyers (see
Answer 3-4). Pallakoff must be read, not in isolation, but for what it fairly
teaches in combination with the prior art as a whole. Our reviewing court
has stated: “[t]he use of patents as references is not limited to what the
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