Appeal No. 2000-0426
Application No. 08/427,447
the applicant’s device in order for the controller unit to send out
signals on a periodic basis. The examiner’s statements on page 3
of the final fail to specify any prior art teaching that would
suggest why the proposed modification of periodic interrogation is
desirable or preferable as opposed to being merely possible.”
Appellant further argues (id. at page 6) that “the examiner
supplies reasoning [to combine] with the aid of hindsight.”
The examiner responds (answer at page 6) that
[i]n the amendment filed on 05/27/97 [paper no. 11], the
appellant did challenge the examiner’s well known
position on “periodic interrogation” issue and the
examiner provided Kersten reference (US. 5,583,486) as
evidence to support the known “periodic interrogation”.
In Col 8, lines 25-35, Kersten specifically states that
the transmitter 33 “periodically transmits short
interrogation pulses of radio frequency energy that are
received and retransmitted by a transponder 21 in a
signal enabling tag 20.” Thus, the examiner made that
amendment [sic., Office action] final accordingly (Paper
No. 13).
Appellant has filed no reply brief to challenge this evidence by
the examiner that Kersten satisfies the requirement to support the
official notice on which the examiner bases his assertion that
periodic interrogation was commonly known.
Before making our decision we visit the requirement of a
rejection under 35 U.S.C. § 103.
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