Appeal No. 1997-4351 Page 5
Application No. 08/435,375
we agree that fortuitous circumstances may occur, in Bates,
which might cause some windows to return to their original
positions in some cases, a finding of obviousness cannot be
predicated on the mere fact that a situation meeting the claim
language may occur “when the moon and the stars should be
alignment.” Bates is concerned with sorting the cascaded
windows based on the amount of active time of a window, with
the most active being on top of the cascade. The skilled
artisan, viewing the Bates reference, would have had no reason
to arrange the cascaded windows in any other order, viz., an
original order, and should the windows in Bates revert back to
an original order by chance because of a coincidence of equal
active times, the artisan would not even have been aware that
this would be, in any manner, a desirable result. Thus, it
would be difficult to contend that the occurrence of a
situation, the significance of which the artisan is not even
cognizant, would have been obvious, within the meaning of 35
U.S.C. 103, to the artisan.
The examiner also contends [answer-page 5] that “[w]hen
the timer is not activated, record 40 and the list 27 remain
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