Appeal No. 2006-0681
Application No. 09/072,412
In the brief at page 14, Appellant argues, “the fixed
position of the present invention must be accurate within
tolerances of less than one inch.” As above, we find no such
limitation in claim 1. Thus, Appellant is arguing a limitation
that is not claimed.
In the brief at page 14, Appellant argues, Bartlett fails to
teach an equalizer. We find this argument unpersuasive.
Bartlett teaches equalization and Murayama describes an
equalizer. The Examiner used the combination of Bartlett and
Murayama to show obviousness. One cannot show nonobviousness by
attacking references individually where the rejections are based
on combinations of references. See In re Keller, 642 F.2d 413,
426, 208 USPQ 871, 882 (CCPA 1981); In re Merck & Co., 800 F.2d
1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986).
At page 16 of the brief, Appellant implies that because
Bartlett is “entirely directed to using existing devices,” it
teaches away from “construction of new or specialized (or any)
devices.” We find this argument unpersuasive. “A reference may
be said to teach away when a person of ordinary skill, upon
reading the reference...would be led in a direction divergent
from the path that was taken by the applicant.” In re Haruna,
249 F.3d 1327, 58USPQ2d 1517 (Fed. Cir. 2001). We do not find
this to be the situation before this Board. At most it can be
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007