Appeal No. 2004-0316
Application 09/136,619
Appellant's argument would suggest that even though Wen
discloses thumbnail images of photos to be used as an
index (which is exactly what Appellant's invention
does), and further discusses the usage of text with
images to provide information to the user, this
disclosure somehow fails to encompass the addition of a
mark (e.g., track listing next to the thumbnail image)
on the CD. The Examiner contends that Appellant is
reading the term "index" in Wen as narrowly as
possible, and that even with this narrow interpretation
still does not overcome the rejection. Appellant's
interpretation of index contradicts not only what one
of ordinary skill in the art would perceive as being an
index on a CD (see any list of tracks on music CD, note
the numbers that identify the tracks on the disc), it
also contradicts a simple common sense interpretation
of what an "index" is. The Examiner maintain [sic,
maintains] that when Wen states that an index is
provided that consists of thumbnails, that this
implicitly means that markings accompany the thumbnail
index.
The examiner's persuasiveness is aided by earlier teachings
at column 1, lines 20-23 of Wen. There it is stated that a label
is "usually printed with, say, a description of the information
stored on the CD. The printed information may be logos, text,
graphics, and/or bar codes." Not only does this descriptive
information correspond to the just-reproduced portion of the
answer, it essentially refutes the appellant's arguments at pages
4-6 of the brief as to the first stated rejection of each of the
independent claims on appeal. Consistent with this teaching of
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