Appeal No. 1997-3481
Application 08/476,543
We agree that neither Knowles nor Swartz '798 teaches
auto-discrimination. The ability to analyze different symbol
bar codes does not mean that the different symbol bar codes
are automatically discriminated; the bar code reader might be
configured to read different codes by the user by pressing a
key (e.g., Metrologic Product Manual) or other hardware (e.g.,
a switch). We note that the claims only require
discrimination between two (i.e., "a plurality") of bar code
types. There is no evidence in the applied references that
there were bar code types that were so related that both were
normally automatically discriminated by the bar code reader.
It appears to us, based on the declaration of Mr. Waite,
that given the motivation to provide auto-discrimination, the
solution would have been within the level of skill of one of
ordinary skill in the art. That is, Mr. Waite states that he
a person of ordinary skill in the bar code reading art (Waite
declaration, para. 13) and that he drafted the software code
at the direction of the inventors George E. Chadima, Jr. and
Vadim Laser (Waite declaration, para. 2). Absent any sort of
statement that Mr. Waite would not have known how to
discriminate between the codes absent instructions from the
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