Appeal No. 96-1233
Application 08/259,368
measure allocation are provided in Blasciak” [answer, pages 8-
9]. Appellants argue that although the problem of measuring
allocation was well known, Blasciak has no teaching related to
the specific method recited in claim 25 [brief, pages 19-21].
We agree with appellants.
Blasciak’s teaching of measuring memory use cannot be
said to suggest the measurement of allocated memory and the
determination of whether allocated memory only has been
accessed within a monitor time interval. The examiner’s
observation that Blasciak has the capability to be modified to
implement the invention of claim 25 does not support
obviousness within the meaning of 35 U.S.C. § 103. Such
modification could only come from the improper hindsight
reconstruction of the invention based on appellants’ own
disclosure. Therefore, we do not sustain the rejection of
independent claim 25 under 35 U.S.C. § 103.
We now consider the rejection of claims 26-30 under
35 U.S.C. § 103 as being unpatentable over the teachings of
Blasciak and Ellsworth. With respect to independent claim 26,
the examiner applies Blasciak in the same manner as before,
and the examiner cites Ellsworth as teaching the desirability
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