Ex parte RABIN - Page 4

              Appeal No. 1997-2048                                                                                        
              Application No. 08/175,326                                                                                  

                     As pointed out by our reviewing court, we must first determine the scope of the                      

              claim.  "[T]he name of the game is the claim."  In re Hiniker Co., 150 F.3d 1362, 1369, 47                  

              USPQ2d 1523, 1529 (Fed. Cir. 1998).  We find that the examiner has not provided a                           
              teaching or convincing line of reasoning why one skilled in the art would have desired to                   
              use the command as the signal for both command recognition and speaker identity                             
              verification as set forth in the language of claim 7.                                                       
                     “To reject claims in an application under section 103, an examiner must show an                      

              unrebutted prima facie case of obviousness.   See In re Deuel, 51 F.3d 1552, 1557,  34                      

              USPQ2d 1210, 1214 (Fed. Cir. 1995).  In the absence of a proper prima facie case of                         
              obviousness, an applicant who complies with the other statutory requirements is entitled to                 
              a patent.   See In re Oetiker, 977 F.2d 1443, 1445,  24  USPQ2d 1443, 1444 (Fed. Cir.                       

              1992).  On appeal to the Board, an applicant can overcome a rejection by showing                            
              insufficient evidence of prima facie obviousness or by rebutting the prima facie case with                  
              evidence of secondary indicia of nonobviousness.”  In re Rouffet, 149 F.3d 1350, 1355,                      

              47 USPQ2d 1453, 1455 (Fed. Cir. 1998).  Here, we find that                                                  
              appellant has overcome the prima facie case of obviousness by showing insufficient                          
              evidence by the examiner of obviousness.  Therefore, we will not sustain the rejection of                   
              claim 7, nor its similar independent claims 1, 3, 4, and 6.  Nor will we sustain the rejection              
              of dependent claims 5 and 8-10.                                                                             


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