Appeal 2007-0789
Application 09/810,063
ordinary skill is also a person of ordinary creativity, not an automaton.” KSR, 127
S.Ct. at 1742, 82 USPQ2d at 1397.
Accordingly, we affirm the rejection as to claim 21 over the cited references.
Though we affirm this rejection of claim 21 for essentially the same reasons the
Examiner has given, since it depends on claim 4, and our reasoning in concluding
that the claimed method as described in claim 4 would have been obvious to one of
ordinary skill in the art departs from that of the Examiner, we also denominate the
rejection of claim 21 as a new ground under 37 C.F.R. § 41.50(b).
E. Conclusion of Law
On the record before us, Appellants have failed to show that the Examiner
erred in rejecting the claims over the prior art.
DECISION
The decision of the Examiner rejecting claims 1-4, 6, 8-11, 13, 15-18, 21,
23, and 24 under 35 U.S.C. § 103(a) as being unpatentable over Odlyzko in view
of Saari is affirmed but denominated as new grounds of rejection under 37 C.F.R. §
41.50(b).
This decision contains a new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004),
1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37 C.F.R. § 41.50(b) provides
“[a] new ground of rejection pursuant to this paragraph shall not be considered
final for judicial review.”
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