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does not explicitly teach a determination of a newer version of
the firmware.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obvious to check for a newer version of the firmware between the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
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Last modified: November 3, 2007