Appeal No. 1999-2714
Application No. 08/504,562
over the combination of Metzner and Queen since the examiner mentions both
references when addressing claim 95.
The examiner does not list out claims 101-108, 110, 117 in the statement of the
rejection, but discusses these claims at page 9 of the answer with respect to an
obviousness rejection, but not with respect to anticipation. Therefore, we cannot sustain
a rejection under anticipation.
Therefore, we will not sustain the rejection of claims in appellant’s groups 1, 2, 6,
and 8-13 (brief at page 6) under 35 USC § 102 over Metzner alone.
35 USC § 103
With respect to the examiner’s alternative rejection of the above claims under
35 USC § 103, the examiner appears to base the rejection of various dependent claims
under 35 USC § 103 with respect to the indexing items of data or segments. (See
answer at page 8.) While this may true, the examiner has not set forth the analysis
under 35 USC § 103 for the independent claims.
Appellant argues that Metzner does not explain to one skilled in the art anyway to
resynchronize the file comparison process if the data is skewed whereas the use of two
representations for each segment can serve as a means to determine matching when
skewing has occurred. Appellant argues that one skilled in the computer science field
would have no motivation from Metzner (alone) to develop methods and structures
wherein each of the plurality of segments has two representations. (See brief at page
10
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