Appeal No. 96-1233
Application 08/259,368
With respect to independent claim 23, appellants argue
that the Blasciak teaching of measuring time by starting and
stopping a counter is not the same as the claimed use of a
hardware timer which generates time stamps and determines time
intervals by analyzing these time stamps. Although both
Blasciak and the claimed invention measure intervals of time,
we agree with appellants that the measurement in Blasciak does
not perform the steps specifically recited in claim 23. Since
the rejection is based on anticipation under 35 U.S.C. § 102,
we do not sustain the rejection of claim 23.
We now consider the rejection of independent claim 25
under 35 U.S.C. § 103 as being unpatentable over the teachings
of Blasciak taken alone. In rejecting claims under 35 U.S.C.
§ 103, it is incumbent upon the examiner to establish a
factual basis to support the legal conclusion of obviousness.
See In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In
so doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S.
1, 17, 148 USPQ 459, 467 (CCPA 1966), and to provide a reason
why one having ordinary skill in the pertinent art would have
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