Appeal 2007-2533
Application 09/972,434
1 the seller [imported from intermediate claim 2] in which the electronic file
2 comprises dynamic elements capable of being unilaterally altered by the seller or
3 buyer.
4 The Examiner found that Frengut teaches that the electronic file has dynamic
5 elements and the product list filter is a dynamic element , but does not teach that
6 the dynamic elements are capable of being unilaterally altered by the seller or
7 buyer. To overcome this deficiency, the Examiner took Official Notice of the
8 notoriety for a seller or buyer to modify the elements in a profile. The Examiner
9 concluded that it would have been obvious to one of ordinary skill to incorporate
10 this feature into the invention of Frengut in order to allow the seller to adjust the
11 target audience of an advertisement, as suggested by Frengut (Answer 7: Third ¶).
12 The Examiner provided evidence to support this Official Notice with the
13 Examiner’s Answer (Answer 10: Final ¶) after the Appellants traversed the Official
14 Notice (Appeal Br. 9: Third ¶).
15 The Appellants contend that the Examiner has not established a nexus between
16 the proposed modification and the asserted benefit (Reply Br. 5, Final ¶). We find
17 that the benefit of altering anything is evident on its face – it give the ability to
18 correct or alter data as appropriate. Thus, the benefit of dynamic elements capable
19 of being unilaterally altered by the seller or buyer is in the ability to correct or alter
20 those elements as appropriate, as for example, allowing Frengut’s seller to adjust
21 the target audience as the motivation found by the Examiner. Therefore, we find
22 the Appellants’ argument unpersuasive.
23 Thus, the Appellants have not sustained their burden of showing that the
24 Examiner erred in rejecting claims 4, 5, 9, 10, 14, 15, 19, and 20 under 35 U.S.C.
25 § 103(a) as unpatentable over Frengut and Official Notice.
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