Appeal No. 1998-1105 Page 8
Application No. 08/300,599
The specification expresses the claimed transmission rate in
"baud." (Spec. at 2.) In the appeal brief, furthermore, the
appellant uses the terms "transmission rate" and "baud rate"
interchangeably, (Appeal Br. at 7 ("Baker does NOT appear to
disclose or suggest varying the transmission (baud) rate of
the messages ...."), and offers to amend the claims to recite
"baud rate" rather than "transmission rate." (Id. ) Reading
the claims in light of the specification, the limitations of
claims 1-7 and 13-16 each requires sending messages at
different baud rates.
The examiner fails to show a suggestion of the
limitations in the prior art. “Obviousness may not be
established using hindsight or in view of the teachings or
suggestions of the inventor.” Para-Ordnance Mfg. v. SGS
Importers Int’l, 73 F.3d 1085, 1087, 37 USPQ2d 1237, 1239
(Fed. Cir. 1995)(citing W.L. Gore & Assocs., Inc. v. Garlock,
Inc., 721 F.2d 1540, 1551, 1553, 220 USPQ 303, 311, 312-13
(Fed. Cir. 1983)). “The mere fact that the prior art may be
modified in the manner suggested by the Examiner does not make
the modification obvious unless the prior art suggested the
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