Appeal No. 1997-4461
Application 08/482893
With respect to the recitation of stored counts in
claim 49, the examiner simply asserts that it would have been
obvious to use stored counts instead of digitized data. The
examiner attempts to buttress this position by citing patents
issued to Engstrom and Enser which have not been listed in the
statement of the rejection. A reference not positively
included in a statement of rejection is not considered. In re
Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA
1970). Therefore, the teachings of Engstrom and Enser are not
before us with respect to the propriety of the examiner’s
rejection.
Of more importance, however, is the fact that Yasuda
does not teach a processor having the four means recited in
claim 49. Although the examiner attempts to read the language
of claim 49 broad enough to read on the Yasuda device, the
examiner’s interpretation of the claim is untenable. Yasuda
reconstructs a bar coded symbol by implementing equation (1)
as set forth at the bottom of column 4 of the patent.
Equation (1) reconstructs the pattern a (Figure 8) by
combining a ', a ', a ' and a ' as independent geometric1 2 3 4
portions of the pattern a. These portions do not overlap.
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