Appeal No. 2006-3367 Page 4
Application No. 09/849,927
the known test signals are transmitted via the single antenna 22 (Figure 2; column 5, lines
25 through 28; column 11, lines 13 through 19).
Appellant argues (brief, page 7) that the skilled artisan would not modify the
appellant’s admitted prior art “which utilizes STC in a non-dispersive communications
channel with the equalization method disclosed in DiToro” because “[t]he equalization
method of DiToro is applicable to a single, partitioned signal transmission over a
dispersive communications channel in which time gaps must be inserted between
message frames and test signals.” Appellant also argues (brief, page 7) that “a skilled
person would not find motivation in DiToro to modify the AAPA using the arrangement
disclosed in DiToro to arrive at the method of the present invention in view of the
inability to insert effective time gaps into the plurality of STC data streams to prevent
overlapping at the receiver.” Appellant concludes (answer, page 8) that it is only possible
to arrive at the method of the present invention through the impermissible use of
hindsight.
We agree with appellant’s arguments. The examiner’s reasoning never points out
how the skilled artisan is to combine the disparate teachings of the appellant’s admitted
prior art and the teachings of DiToro. Even if we assume for the sake of argument that
the skilled artisan would have found it obvious to combine the teachings, we still find that
the steps outlined in the claims on appeal would not be found in the combined teachings.
Thus, the obviousness rejection of claims 1, 2, 4, 6 through 14, 19 through 21, 23 through
27, and 29 is reversed because we agree with the appellant’s argument that the examiner
has resorted to impermissible hindsight to establish the obviousness of the claimed
invention.
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