Appeal 2006-2624
Application 10/223,246
We do not agree with Appellants’ urging at pages 6 and 7 of the Brief that
Nakanishi and Durkota are non-analogous art. The Examiner addresses this
at pages 8 and 9 of the Answer and urges that both references are in the
same field of endeavor. Rather than being in diverse or unrelated art areas
as characterized by Appellants, it appears to us with understanding of both
references that the focus of both of them is on transmitted power of a radio
antenna and monitoring of it. Appellants’ remarks at the bottom of page 6
even admit that the art as characterized by Appellants is related anyway.
Similarly, we disagree with Appellants’ arguments at page 7 of the
brief which makes reference to the language “thereby warning a user
adjacent to the transmitter” at the end claim 1 on appeal. Besides arguing a
structural combinability rather than the combinability of the teaching value
of the applied prior art, the additional rationale from Appellants’ admitted
prior art actually meets this limitation. Notwithstanding these
considerations, however, the mere intended use of an device does not make a
claim to that product patentable as indicated in In re Schreiber, 128 F.3d
1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997). There is no such
warning indication recited in independent claim 10 on appeal. We also
agree with the Examiner’s responsive remarks addressing Appellants’
arguments in the brief beginning at page 9 through the end of the Answer.
On the other hand, we do not sustain the rejection of independent
claim 19. The Examiner’s statement of the rejection at page 6 of the Answer
recognizes that the combination of Nakanishi, Durkota and Maia does not
teach the features of claim 19 of presetting a warning level for the
transmitted signal strength and, if it is recognized that the strength is greater
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