Appeal No. 2001-2526
Application No. 08/823,183
used and the imaging system is directed upward through the plate to form an optical
link.
We note that the examiner asserts that “except for certain details, the claim
departs little from a grocery check-out scanner.” (See answer at page 6.) Additionally,
the examiner maintains that “Appellant’s figure 1 resembles a very large grocery store
scanner system used for full size cars.” (See answer at page 6.) While this may or
may not be true, the examiner has not expressly set forth a rejection based upon a
grocery store check-out system and has cited and applied no prior art beyond the
teachings of McJohnson in the background discussion of the prior art. Therefore, we
will not address arguments thereto. In the discussion in the arguments section, the
examiner mentions the Tooley reference (5,252,814) and Gitin (5,406,060) but states
that they were not relied upon because the examiner deemed it unnecessary. (See
answer at page 10.) Since the examiner has not deemed it necessary to apply these
references, we will not address any relevance of these references to the claimed
invention.
Appellants argue that it is not sufficient for the examiner to pick and choose
among various references to arrive at the claimed invention and that the examiner has
relied upon improper hindsight to reconstruct the claimed invention. (See brief at pages
4-5.) We agree with appellants. Appellants argue that Nakamura teaches a
conventional vehicle body manufacturing system with the photocell hanger reader
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