Appeal No. 1998-1914
Application No. 08/528,130
directly or indirectly, and with good reason. The present situation raises an initial question
as to whether the rejection of claims 4 and 5 is based on section 102 or section 103 of
Title 35. We conclude, as did appellants, that the examiner changed his position in the
Final Rejection, and the instant rejection over Bailey is for anticipation. (See Brief, page
10.) In any event, the rejection of claims 4 and 5 set out on pages 3 and 4 of Paper No. 5
does not establish a prima facie case of obviousness, but is based in part on unsupported
conclusion. “Bailey does not include amplitude comparison with the input RF signal.
However, this is an obvious option and completely possible with this hardware apparatus,
if it was at all desired to do so.” (Paper No. 5, page 4.)
The examiner’s current position is that Bailey does disclose amplitude comparison
with the input RF signal. Bailey’s “method for incorporating a comparison of the incoming
rf signal with the filter outputs is illustrated in Fig. 6 as well as in col. 8, lines 30-65.” (See
Answer, page 4.) The examiner contends that “the wideband discriminator output”
effectively represents the RF signal, and the computer compares the wideband
discriminator output with the “voting logic/channelizer outputs.” (See id.)
We agree with appellants, as asserted on page 4 of the Reply Brief, that the
reference does not meet the requirements of instant claim 1. Even if the “wideband
discriminator output” were to represent the received RF signal within the ambit of claim 1,
there is no comparison of the RF signal with “each individual one” of the magnitudes output
from the filters.
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