Appeal No. 2006-0412 Παγε 6
Application No. 09/999,827
The examiner's position (final rejection, page 2) is that
Ferguson and DeLuca fail to disclose the use of non-contact
electrodes in the system. To overcome this deficiency of
Ferguson and DeLuca, the examiner turns to Brun Del Re for
a teaching of non-contact electrodes. The examiner asserts (id.)
that such electrodes are well known in the art and that it would
have been an obvious design expedient to a skilled artisan to use
Brun Del Re’s non-contact electrode in the systems of Ferguson
and DeLuca.
Appellants' position (brief, page 4) is that:
Brun Del Re teaches an electric field sensor that
may be spaced from contact with the body, but otherwise
has no relevance to the references or claimed invention.
[O]ne of ordinary skill in the art would not have been
motivated to make the Examiner’s proposed modification
because it would result in a less operative or inoperative
product. The only “motivation” provided is the Examiner’s
hindsight and desire to craft a rejection using the
present claims as a roadmap. The Examiner’s sole
response to the previously presented arguments, in
the Final Office Action of February 25, 2004, was a
standard form paragraph suggesting that “bodily
incorporation” is not a requirement for an obviousness
rejection and that “the test is what the combined
teachings of the references suggest.”
It is further argued (reply brief, page 4) that to
incorporate the Brun Del Re sensor would require modification of
the sensors of Ferguson and DeLuca in such a manner as to
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