Appeal No. 2001-2612 Page 7
Application No. 09/479,741
Claims 7 and 9-12 depend from independent claim 3 and include limitations
regarding changing the relative sizes of the faces and the facial features thereon to
reflect the expressions of different intensities of the emotions represented thereby. The
examiner acknowledges that Frank does not disclose these size differences but
concludes this would have been “a mere design choice” which is recognized as being
within the level of ordinary skill in the art (Paper No. 5, page 4).
With regard to these claims, we first conclude that considering Frank in the light
of Section 103 does not cause it to alleviate the deficiency noted above in the rejection
of independent claim 3 under Section 102, namely, Frank does not disclose or teach
multiple representations of the levels of intensity of one and only one emotion. Thus,
the rejection of claims 7 and 9-12, which necessarily include the limitations of claim 3,
cannot be sustained on this basis. Moreover, the rejection of claims 7 and 9-12 further
is deficient in that the examiner has provided no evidence that one of ordinary skill in
the art would have found it obvious to change the relative sizes of facial expressions on
the various manifestations of the levels of intensity of the single emotions, or the
relative sizes of the faces themselves, which are recited in these claims.
In view of the foregoing, the teachings of Frank fail to establish a prima facie
case of obviousness with regard to the subject matter recited in claims 7 and 9-12, and
we will not sustain this rejection.
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