Ex parte BEALKOWSKI et al. - Page 3

          Appeal No. 95-3648                                                         
          Application 07/777,844                                                     

          the claimed primary initialization to correspond to the normal             
          operating mode utilizing the PAS and the continuing initiali-              
          zation requirement of the claims on appeal as being correlated to          
          the fault recovery operation of the system based upon the SAS.             
               Both the appellants and the examiner recognize that Smith             
          does not explicitly teach a determination of a newer version of            
          the firmware.  However, as expressed by the examiner on page 4 of          
          the answer, the examiner considers that it would have been                 
          obvious to check for a newer version of the firmware between the           
          PAS and the SAS because it would be more up-to-date and more               
          efficient.  Additionally, as expressed at page 5 of the answer,            
          the examiner appears to view that the state difference deter-              
          minations between modules in Smith “can easily include the                 
          version of the firmware being different.”                                  
               We regard such reasoning of the examiner as to the newer              
          version requirement of the claims on appeal as being based upon            
          pure speculation and/or prohibited hindsight.  We are inclined to          
          agree with the appellants’ reasoning at the bottom of page 6 of            
          the brief that it is likely that the PAS and SAS are the                   
          same version.  As expressed there, appellants’ reasoning is well-          
          taken that if they were different versions, then operational or            
          functional confusion would have existed within the system when             


Page:  Previous  1  2  3  4  5  Next 

Last modified: November 3, 2007