Appeal 2007-1406
Application 09/910,970
consistent with the Specification and also in accordance with the plain
meaning of the term “unrecorded.” This plain meaning is fully supported in
the Specification at page 3, lines 26-28, where unrecorded material is
“usually displayed on a video output as a solid color or snow, which is a
random-pattern black and white image.”
While we agree with the Examiner that commercial data content may
reasonably correspond to “undesired data,” we nevertheless find Appellant’s
claims are silent regarding the desirability of the data. Instead, each of
independent claims 1, 9, 15, 23, and 29 expressly recites the limitation of
“unrecorded data content.” We also find the Examiner has not shown or
adequately explained how “unrecorded data content” can be fairly read on
the commercial content disclosed by Dettmer. In that regard, Dettmer
identifies the commercials before recording or copying which results in not
recording the commercials and leaving only recorded data containing the
main programming (col. 4, ll. 4-12). This is not the same as having at least
one frame of the unrecorded data content as a border of the recorded data
content. The frame arrangement of Dettmer, at best, may be characterized as
unrecordable data frames bordering recordable data.
Because we find Dettmer fails to disclose the recited limitation of
“unrecorded data content,” we agree with Appellant that the Examiner has
failed to set forth a prima facie case of anticipation. Therefore, we reverse
the Examiner’s rejection independent claims 1, 9, 15, 23, and 29 as being
anticipated by Dettmer. Because we have reversed the Examiner’s rejection
of each independent claim on appeal, we will also reverse the Examiner’s
rejection of dependent claims 2-7, 10-13, 16-19, 22, 24-28, and 31-35, as
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