Appeal No. 2003-0101
Application No. 09/661,520
OPINION
We REVERSE.
Each and every one of the instant claims requires at least a
housing in the form of a sea shell and some actuation of a sound
reproduction device when the housing is lifted to the ear of a
user.
Saitoh is directed to the actuation of a toy bird, so that
an animated singing toy bird results from an external stimulus
such as body heat of a user approaching the toy bird. Not only
is Saitoh devoid of any teaching or suggestion of a housing in
the shape of a sea shell, but the toy bird of Saitoh becomes
animated and reproduces sound (viz., of a singing bird) upon the
approach of a user rather than upon the device being lifted.
The examiner contends that the difference in shape of the
housings in Saitoh and the instant claimed invention is a “matter
of design choice” (answer-page 3). We disagree. The shape of
the housing in the instant claimed invention is more than a
design choice. It is the shape of a sea shell which encourages a
user to pick up the device and place the device next to his/her
ear, wherein the novelty of the device, i.e., the surprise of
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