Appeal 2007-0932
Application 10/058,924
appear to teach the entry of the destination information after the step of
photographing the subject. Along with this reasoning, the Examiner asserts
the absence of criticality of the order in which these acts occur.
The Examiner repeats the design choice line of reasoning in the
responsive arguments as to these independent claims at pages 22 and 23 of
the Answer.
Beginning at page 29 of the principal Brief on appeal and page 20 of
the Reply Brief, Appellants assert there is criticality according to the order in
which the acts are claimed to occur based upon the disclosed invention.
Although we sustain the rejection of the claims in the fifth and sixth
stated rejections, we consider the Examiner’s reliance upon design choice of
the order of presentation to be in effect a per se rule of unpatentability. The
skilled artisan may well consider Appellants’ arguments of criticality to be
persuasive. On the other hand, we understand the teachings and showings of
Allen to clearly indicate to the skilled artisan that the entry of destination
information does occur before the act of photography itself in Allen. In
figure 1, the voice recognition module 30 includes the code book 25. It is
clear from the discussion at column 2, line 52 through column 3, line 4 that
electronic address information may be entered into this code book by the use
of an LCD touch screen or the microphone 24. The figure 2 showing of the
“compare” capability in block 58 of this flow chart compares later, after the
photography act has occurred, verbal identity or selection of preentered
destination information in accordance with the discussion at column 3, line
49 through column 4, line 20 and the discussion at column 4, lines 40
through 54. It is clear from this overall discussion in Allen that the compare
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