Appeal No. 96-0651
Application No. 08/087,164
the updated operating code from the remote computer to the
host computer and then controls the transfer of the updated
operating code from the local computer to the modem via the
interface means.
The examiner appears to recognize the differences between
Herh and the instant claimed subject matter but takes the
position that even though Herh does not teach many of the
functions being performed by the local host computer as
claimed, Herh does not need to have the local host computer
perform these functions because the microprocessor(s) of
Herh’s modem perform the same function. We disagree.
Merely because two systems perform the same or a similar
function does not, per se, make those systems patentably
indistinct. For example, a quill and ink, a ballpoint pen and
an electronic word processor may all perform the same
function, i.e., the writing of a document, but, clearly, they
do not perform the same function in the same manner.
Similarly, while Herh and appellants may perform the same
function, i.e., remotely updating firmware using a modem, they
perform this function in different manners. While the modem
in Herh performs all of the processing, the instant claimed
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