Appeal No. 2001-2052
Application No. 08/943,427
call in light of Kanai’s alternative teaching of increasing the transmission power to
improve the carrier-to-interference ratio.
In the statement of the rejection at pages 4 and 5 of the answer, the examiner
does not address the alternatives, but rather concludes that it would have been obvious
to one of ordinary skill in the art to handoff the call with a low carrier-to-interference ratio
so that the call would not be lost in place of the teaching of Kanai which teaches
increasing the power so that the call will not be lost. The examiner maintains that there
is no conflict between the teachings. (See answer at page 6.) The examiner maintains
“the teachings of Eriksson as just another way to solve the common problem of a
reduced quality signal shared by both references” and that the examiner does not see
any conflicting teachings between the two references. (See answer at page 7.) While
appellant and the examiner dispute over whether there is a “conflict,” there is still the
issue of why would it have been obvious to one of ordinary skill in the art at the time of
the invention to modify the teachings of Kanai. The mere fact that Eriksson teaches an
alternative, does not make it ipso facto a reason to modify the teachings of Kanai
unless there is a recognized benefit to make this change. We find no such teaching or
suggestion in either reference and do not find a convincing line of reasoning set forth by
the examiner in the answer.
Appellant argues that the examiner has relied upon impermissible hindsight to
reconstruct the claimed invention by picking and choosing among the two disclosures.
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