Appeal 2007-0647
Application 10/421,366
In response, the Examiner states that the limitations argued by
Appellants are not recited in the rejected claims (i.e., claims 6 and 44)
(Answer 14).
After carefully considering the evidence before us, we note that the
limitations argued by Appellants are explicitly recited within independent
claim 1 (from which claim 6 indirectly depends) and are recited in
equivalent form within independent claim 37 (from which claim 44 directly
depends). We note that “[a] claim in dependent form shall be construed to
incorporate by reference all the limitations of the claim to which it refers.”
(See 35 U.S.C. § 112, fourth paragraph). Here, we find the Examiner has
erred because the Examiner has previously acknowledged that August does
not teach the limitations argued by Appellants (See Answer 4 where the
Examiner relies on DiPietro for teaching the merchant station and associated
limitations). In the rejection of dependent claims 6 and 44, the Examiner
merely relies on Brooks and Miyahira as evidence to support the Examiner’s
contention that it was well known in the art for a fast food representative to
use a wired or wireless headset to communicate with the customer (See
Answer 8). Therefore, we reverse the Examiner’s rejection of claims 6 and
44 as being unpatentable over the teachings of August in view of Brooks and
Miyahira because Appellants have shown the Examiner’s proffered
combination fails to teach all the limitations subsumed in dependent claims 6
and 44 by virtue of their dependency upon independent claims 1 and 37,
respectively.
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