Appeal Number: 2006-3176
Application Number: 10/203,620
rhythm and anything that has a rhythm inherently is a musical
composition or is an extraction from a musical composition. If one
were to tap a pencil to the rhythm of the modulated light taught by
Norifumi, by definition of music, the tapping pencil is a musical
score. Norifumi is merely silent on explicitly teaching the fact that the
rhythm signal was extracted from a musical composition. Applicant
has merely claimed that the rhythm signal is extracted from a musical
composition, thus it isn't even the entire composition of music and
could merely be two beats extracted. The selection of a particular
rhythm, i.e. one extracted from a musical composition, would have
been obvious to one of ordinary skill in the art since the modification
is merely the selection of a known alternate rhythm selected to meet
the needs of different plant varieties through routine tests and
experimentation. All modulation signals inherently have pitch and
pitch inherently is produced according to certain musical time or rule.
(Answer 4).
We note that the appellants have provided no lexicographic definition of music
in the specification, but we find that Webster’s II New Riverside University
Dictionary (1994), defines music as “vocal or instrumental sounds with rhythm,
melody and harmony.” We find no teaching or suggestion in either Norifumi or
Statesman to modulate light with vocal or instrumental sounds with rhythm,
melody and harmony. We find the examiner’s argument that any signal having
rhythm is inherently music to be unpersuasive given the need for harmony in
music. Therefore, we find the examiner's arguments to be unpersuasive.
Accordingly we do not sustain the examiner's rejection of claims 1, 3 through
6, 8, 11, 12 and 14 under 35 U.S.C. § 103(a) as obvious over Norifumi and
Statesman.
Claims 7 and 13 rejected under 35 U.S.C. § 103(a) as obvious over Norifumi,
Statesman and Ryuichi.
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