Appeal No. 1997-1632 Page 15
Application No. 08/138,555
III. Obviousness Rejections of Claims 45-60 and 62-83
We address the six points of contention between the examiner and the
appellants. First, implying that neither Roland, Mauch '393, Mauch '954, nor Ulch uses
a RF transmission, the examiner asserts, "to communicate using radio as suggested by
Tolson a suitable transmitter and modulator would be required to send data to receiver
which include the appropriate demodulator. . . .” (Paper No. 46 at 9-10.) The
appellants argue, "[i]n Tolson, the radio signal that is transmitted is unmodulated."
(Paper No. 47 at 8.)
As mentioned regarding the obviousness-type double patenting rejections,
independent claims 45, 68, and 73 specify using modulation in a RF transmission. As
also aforementioned, a person of ordinary skill in the art would interpret Tolson as not
requiring modulation. The examiner’s conclusory opinion that modulation has been
very common in the art does not allege, let alone establish, that one of ordinary skill in
the art would had added modulation to Tolson. He fails to allege, let alone show,
moreover, that either Walton '068, Bar-on, Shelley, Clark '780, Walton '829, or Masel
cures the defect of Tolson. Therefore, we reverse the obviousness rejection of
independent claims 45, 68, and 73, and of dependent claims 46, 48, 50-53, and 55-60,
which depend from claim 45.
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