Appeal No. 2001-2526
Application No. 08/823,183
At pages 6-7 of the answer, the examiner goes on at length about his
predisposition toward the obviousness of the claimed invention and its remarkable
similarity to a grocery store checkout. While this similarity may be true, the examiner
has not set forth a rejection and has relied upon no tangible piece of evidence/teaching
to support such a conclusion. Therefore, we have no evidence to evaluate and no
teaching to which appellants may evaluate and rebut. As to such a rejection, we make
no express findings, but we do note that Tooley (5,252,814) teaches and suggests the
use of automated scanning from beneath of articles being conveyed in the checkout.
The examiner maintains that the hindsight argument should be the last line of
defense/argument for appellants and addresses it last. (See answer at page 7.) While
this may be true in most cases, it is appellants’ decision as to which argument(s) to
advance, and in light of a lack of an express statement of motivation for the
combination, we do not find that it is a last line of defense, but an attempt to show that
the examiner has not set forth a prima facie case of obviousness. The examiner goes
on at length about the combination of Nakamura and McJohnson at pages 8-10 of the
answer, but still does not address why it would have been obvious to one of ordinary
skill in the art at the time of the invention, to move the sensor from the side of the
carrier and conveyer and to position the imaging sensor so as to be “directed upwardly
at the marking carrier” as recited in independent claim 1. The reason for the position of
the sensor in McJohnson is due to the stationary placement of the bins of product
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