Appeal No. 2003-0101
Application No. 09/661,520
hearing something other than the expected ocean sound, is
realized. There would have been no reason for the artisan to
modify the shape of the device in Saitoh to make it look like a
sea shell.
Regarding the type of sensor employed, the examiner contends
that different types of switches are “merely alternative forms of
a sensor” (answer-page 4) and that since one sensor “does not
appear to have any significant advantage over the others”
(answer-page 4), it would have been obvious to modify the sensor
44 of Saitoh with any equivalent sensor. Again, we disagree.
Since the sensor employed by the instant claimed invention
permits the sound reproduction device to be activated upon
lifting of the device, as compared with Saitoh’s sensor which is
also a proximity sensor but does not respond to lifting of the
device, it is clear that one type of sensor does, indeed, have an
advantage over other types of sensors. The examiner has
presented no convincing rationale that would have led the artisan
to employ a sensor in Saitoh’s toy bird which would activate the
sound reproduction mechanism upon lifting of the toy bird.
As such, it is clear to us that the examiner has not
presented a prima facie case of obviousness with regard to the
subject matter of claims 1-5, 7-12 and 14-16 and we will not
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