Appeal 2007-2220
Application 09/896,231
specifically refers to these claims in connection with the obviousness
rejection of claim 5. Therefore, notwithstanding the Examiner’s statement
of anticipation, we nevertheless presume that the Examiner intended to
include independent claims 1 and 63 in the obviousness rejection of claim
5.7
Appellants have not disputed the Examiner’s reliance on Hooper for
the specific limitations of claim 5. Rather, Appellants dispute the
Examiner’s position that Haddad teaches all limitations of independent
claims 1 and 63, namely that the processor uses reallocated excess on-
demand infrastructure capacity (Br. 6-7, 10-11; Reply Br. 3-4). We
therefore confine our discussion to these disputed limitations as they pertain
to the Haddad reference.
We agree with the Examiner (Answer 28) that Haddad reasonably
teaches using reallocated excess on-demand infrastructure capacity as
claimed. Haddad indicates that in most audio-visual distribution systems,
consumer demand peaks in the early evening which taxes the distribution
network. Haddad’s system, however, allows the distributor to deliver
requested programs during off-peak hours, thereby shifting much of the
demand away from the peak hours (Haddad, col. 2, ll. 34-44).
To this end, Haddad’s system considers not only the variable time
allowance interval that the subscriber selects, but also the available
7 That Haddad may happen to anticipate some or all of the claims in an
obviousness rejection does not otherwise negate its applicability. See In re
Meyer, 599 F.2d 1026, 1031 (CCPA 1979) (noting that obviousness
rejections can be based on references that happen to anticipate the claimed
subject matter).
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