Appeal No. 97-3918
Application 08/447,901
C. The � 103 rejection
Claims 2 and 9 stand rejected under 35 U.S.C. � 102(b) as 8
anticipated by the admitted prior art playback circuit shown
in appellants' Figure 22 and also alternatively under � 103 as
obvious over the admitted prior art. The examiner's argument
for anticipation is that
[t]he voltage to current amplifier [24 of Figure 22]
would inherently have variable gain. Despite
applicant[s'] allegation that the amplifier in FIG. 22
must be a fixed gain amplifier, this is not clear from
the specification.
[Final Office action at 4, lines 18-19.]
It is not clear what the examiner means when he says that the
amplifier 24 in Figure 22 inherently has "variable gain."
This can be construed to mean that the gain inherently will
drift over time or that the amplifier inherently includes some
means which will permit the gain to be adjusted. Even
assuming for the sake of argument that both types of gain
8The examiner's reliance on paragraph (b) of � 102 is
not understood, because appellants' specification does not
indicate that the playback circuit shown in Figure 22 was
known or used in this country more than one year prior to
appellants' effective filing date. In any event, where, as
here, an appellant admits that subject matter is prior art, it
is not necessary to cite a specific paragraph of � 102 in
support of the rejection. In re Nomiya, 509 F.2d 566, 571
n.4, 184 USPQ 607, 611 n.4 (CCPA 1975).
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