Appeal No. 2006-1293 Παγε 14
Application No. 10/437,840
32 bearing textual information such as “PRESS HERE TO TAKE ME HOME.” In light of
the disclosed transparency of the side walls, for the purpose of permitting merchandise
items located within the housing 11 to be seen by a person checking out at a checkout
counter, one of ordinary skill in the art would have expected the textual information on
indicia bearing strip 34 to be, at least to some extent, backlit by the light source 30 in
response to pushing motion imparted to the strip 34, plate 36 and switch 32, or other
motion responsive signaling device.
In light of the above, in my opinion, based on the argument by appellant, the
rejection of claims 1, 3 and 4 as being unpatentable over Fraser in view of Langhorne or
Ray should be sustained.
With respect to the second reason cited by the majority for reversal of the
rejection of claim 2 as being unpatentable over Fraser in view of Langhorne or Ray and
further in view of Hoshi, while appellant and the majority may be correct that the type of
light sensor disclosed by Hoshi would be unsuitable for use in the Fraser divider
because such a sensor could activate the switch 32 to signal interest of the customer in
purchasing items in the divider without any deliberate and knowing action by the
customer, such as pulling a tab, pushing a button or tapping or shaking the housing, I
note that a motion responsive signaling device comprising a phototransistor that is
exposed to ambient light when a tab 42 is pulled upwardly is disclosed by Fraser in
column 7, first full paragraph. Accordingly, appellant’s argument does not persuade me
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