Appeal No. 97-0244
Application 08/042,357
some form of machine or structure elements in some way anyway.
In any event, we are in basic agreement with the examiner's
contention that the subject matter of claims 3 and 4 as a
whole each respectively attempt to preempt the underlying
mathematical operations and algorithms set forth in these
claims.
Turning lastly to the rejection of claims 2, 5 and 6
under 35 U.S.C. § 103, we reverse this rejection.
The examiner attempts, between pages 6 and 9 of the
answer, to correlate the language of claim 5 on appeal to some
portions of Kato. We have studied these positions and the
referenced portions of Kato as well as Kato as a whole and
conclude that the examiner appears to have fallen short of
setting forth the requisite prima facie case of obviousness
within 35 U.S.C. § 103 for independent claim 5. We reach a
similar conclusion with respect to independent claim 2 at
least because the examiner has
not set forth any stated basis to reject this claim but
appears to rely upon the analysis implicitly set forth for
claim 5 to reject claim 2.
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