Appeal No. 2003-0655
Application No. 09/406,001
communication device. Claim 2 requires a “cellular telephone” and the device of the
combination of Pepe and Miller does not meet the claim language. Therefore, Appellant’s
argument on this point is persuasive. We will not sustain the Examiner’s rejection under
35 U.S.C. § 103.
IV. Whether the Rejection of Claim 3 Under 35 U.S.C. § 103 is proper?
It is our view, after consideration of the record before us, that the evidence relied upon
and the level of skill in the particular art would not have suggested to one of ordinary skill in the
art the obviousness of the invention as set forth in claim 3 for the reasons discussed above with
respect to claims 1 and 2 from which it depends. Accordingly, we reverse.
However, we additionally note that Appellant separately argues, “examiner never
provided a prior art reference” to support the finding of Official Notice as required by MPEP
§ 2144.03 (brief, page 11, last paragraph). The Examiner’s rebuttal is persuasive on this point
with respect to claim 3. The record clearly shows that the LaDue reference was supplied in the
Final Rejection (paper number 15) to support the taking of Official Notice. Therefore,
Appellant’s argument on this point is unpersuasive.
V. Whether the Rejection of Claims 6-9 Under 35 U.S.C. § 103 is proper?
It is our view, after consideration of the record before us, that the evidence relied upon
and the level of skill in the particular art would not have suggested to one of ordinary skill in the
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