Appeal 2007-3787
Reexamination 90/006,642
Patent 4,944,298
1 the Applicant through the appeal brief addressed only the third item
2 pertaining to a combination of all three hardware, software, and firmware.
3 Even assuming that the Applicant’s argument pertaining to the third
4 item has merit, no error has been shown in the rejection because written
5 description for the first and second items have not been addressed.
6 In any event, we reject the Applicant’s argument directed to the third
7 item. It is based on an assertion of interchangeability between software and
8 firmware and also misdirected to determining whether the inventors intended
9 to exclude the combination of hardware, software, and firmware.
10 Interchangeability between software and firmware does not lead to a
11 combination of all three hardware, software, and firmware. Also, the
12 pertinent question is whether the specification conveys to one with ordinary
13 skill that the inventors actually contemplated the arrangement at issue, not
14 whether there is no evidence that the inventors intended to exclude it. The
15 Applicant has not pointed to any description in the specification which
16 translates to a combination of all three hardware, software, and firmware.
17 The Obviousness Rejections
18 Regarding the rejection for obviousness, the Applicant does not
19 separately argue the patentability of any dependent claim apart from the
20 merits of independent claims 6, 14, and 17.
21 Not much is in dispute between the Examiner and the Applicant with
22 regard to the scope and content of the prior art, the differences between the
23 claimed invention and the prior art, and the level of ordinary skill in the art.
24 The issue in this case centers about adequate motivation to combine
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