Appeal No. 1999-0859
Application No. 08/330,972
indicate that signaling in spread spectrum operation, the
problem addressed by the structure of Magin, was ever a concern.
The mere fact that the prior art may be modified in the manner
suggested by the Examiner does not make the modification obvious
unless the prior art suggested the desirability of the
modification. In re Fritch, 972 F. 2d 1260, 1266, 23 USPQ2d
1780, 1783-84 (Fed. Cir. 1992). The only basis for applying
Magin’s teachings to Gorrie and Oto comes from an improper
attempt to reconstruct Appellant's invention in hindsight.
As to the 35 U.S.C. § 103 rejection of dependent claim 8
based on the combination of Gorrie, Oto, Magin, and Perlich, we
note that Perlich was applied solely to meet the different
bandwidth feature of the claim. Perlich, however, does not
overcome the innate deficiencies of Gorrie, Oto, Magin and,
therefore, we do not sustain the obviousness rejection of
dependent claim 8.
In conclusion we have not sustained the Examiner’s
obviousness rejection of any of the claims on appeal.
Therefore, the decision of the Examiner rejecting claims 1, 3,
4, 6-8, and 10-16 is reversed.
REVERSED
8
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