Appeal No. 2003-0481
Application No. 09/222,388
listens for the reply. We find this query, prior to listening, is an active step and
accordingly we find that Kotchey does not teach the claimed limitation of a “passive
listener.”
The examiner has not asserted that Terry teaches the limitation of “initiating a
passive listener.” Nor do we find that Terry teaches the claimed step of “initiating a
passive listener.”
Thus, we find that neither Kotchey or Terry teach the claimed step of “initiating a
passive listener.” We note: the issue before us is whether the references teach the
limitation of a “passive listener”, the question of whether, passive listening would have
been obvious to one of ordinary skill in the art, is not before us, nor has the examiner
presented evidence that it would be an obvious modification of the prior art reference.
In view of the forgoing we will not sustain the rejection of claims 1 through 7
under 35 U.S.C. § 103. Therefore, the decision of the examiner rejecting claims 1
through 7 is reversed.
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