Appeal No. 95-2138
Application 07/852,078
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 n.14, 23 USPQ2d 1780, 1783-84 n.14
(Fed. Cir. 1992), citing In re Gordon, 733 F.2d 900, 902, 221
USPQ 1125, 1127 (Fed. Cir. 1984). "Obviousness may not be
established using hindsight or in view of the teachings or
suggestions of the inventor." Para-Ordnance, 73 F.3d at 1087,
37 USPQ2d at 1239, citing W. L. Gore, 721 F.2d at 1551, 1553,
220 USPQ at 311, 312-13.
In the answer, the Examiner points to the term Amodulated@
used in Appellants= claims and argues that the term should be
given little patentable weight. During oral hearing, we
questioned the Appellants= representative, Mr. James C. Wray,
about the definition of the term Amodulated@ as recited in
Appellants= claims. In response, Mr. Wray argued that the term
Amodulated@ means alternating, but Mr. Wray requested permission
to supplement the brief so as to provide a proper definition
consistent with the usage in the specification. We granted Mr.
Wray permission to supplement the brief within 24 hours from the
time of the oral hearing.
Within this 24 hour period, Appellants filed a supplemental
brief dated September 17, 1997 which has been entered into the
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