Appeal No. 2006-0945
Application No. 10/245,888
Rather than reiterate the conflicting viewpoints advanced by the examiner and appellants
regarding the above-noted rejection, we make reference to the examiner's answer (mailed
8/5/2005) for the examiner's reasoning in support of the rejection, and to appellants’ brief (filed
12/6/2004) and reply brief (filed 10/7/2005) for the appellants’ arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to appellants’
specification and claims, to the applied prior art reference, and to the respective positions
articulated by appellants and the examiner. As a consequence of our review, we make the
determinations which follow.
Claim 1
Appellants argue:
In summary, Narita I is completely different than Narita II in that Narita I
involves dynamically compensating the application capacity, while Narita II
involves statically compensating a parameter used to determine the lockup
solenoid driving duty. Nothing in Narita suggests or implies combining Narita I
and Narita II as asserted in the Final Office Action. Within the Narita reference,
Narita II is described as a separate embodiment from Narita I. Narita II is
described with a step 28 approach that is different and mutually exclusive of the
step 28 approach for Narita I. The specification is devoid of any language
describing or suggesting that the two embodiments can be combined, or how each
respective embodiment would be modified, if such a combination were even
possible. Since there is no teaching or suggestion, the alleged combination of
Narita I and Narita II is the product of impermissible hindsight reconstruction
[See brief at page 7].
Two observations are initially in order:
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