Ex Parte Malackowski et al - Page 5

                Appeal 2006-1914                                                                               
                Application 09/764,609                                                                         

           1          instrument only when the activation button is activated. (See,                           
           2          e.g. 0104.) (Reply Br 4)                                                                
           3                                                                                                   
           4          As argued by applicant throughout the prosecution of this                                
           5          application, the wireless communication between the smart                                
           6          instrument and the computer system was not obvious at the                                
           7          time of the invention due at least in part to the fact that it was                       
           8          not thought a wireless communication system would be                                     
           9          adequate to transfer the large volume of data.  (Reply Br. 4-5)                          
          10                                                                                                   
          11          The Lack Of Any Suggestion of a Wireless Data                                            
          12          Communication Link Between the Smart Instrument and the                                  
          13          Computer System in Chader et al. is Evidence that Such                                   
          14          Wireless Data Communication Was Not Considered an                                        
          15          Obvious Alternative to the Hard Wired Data                                               
          16          Communication System Disclosed Therein.  (Emphasis                                       
          17          original) (Reply Br.  5)                                                                 
          18                                                                                                   
          19          [T]the Rule 132 declaration of Dr. Jay Klarsfeld states that the                         
          20          wireless, hardwired issue is so important that a number of                               
          21          companies have abandoned hardwired active optical systems in                             
          22          favor of passive wireless systems, and have not developed                                
          23          wireless active tracking devices as claimed in the present                               
          24          application.  (Reply Br. 7)                                                              
          25                                                                                                   
          26          [T]hese Rule 132 Affidavits provide direct evidence that the                             
          27          device claimed in this application meets a long felt and                                 
          28          previously unmet need in the industry.  (Reply Br.  7)                                   
          29                                                                                                   
          30          With regard to the rejection of the claims over Chader in view of                        
          31    Acker, Appellants contend that:                                                                
          32          The examiner has not shown any motivation that would lead                                
          33          one of ordinary skill in the art to modify the teaching of Chader                        
          34          with the teaching of Acker. (Br. 7.)                                                     
          35                                                                                                   


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