Appeal No. 1998-0629
Application 08/234,525
The statutory basis for the rejections of claims
1-6, 8-11, 22-27, 29-32 and 43 has been changed from
§102(b) to §103 because although Wilbur et al is silent
as to determining a standard from a frequency
distribution, it would have been obvious to one of
ordinary skill in the art to use this well-known method
of determining a standard, as discussed below in the
response to Applicant's arguments. Official Notice, MPEP
706.02 (a).
In the response to the arguments section, the Examiner stated
(Paper No. 5, p. 4):
[The claimed invention] looks at the range of values a
particular feature lies on, determines a "standard" or
most frequent value, then adjusts the other values to
conform to the standard. Wilber does the same thing, but
is silent as to determining a standard from a frequency
distribution as in claim 1, for example. It is extremely
well-known to determine a most-commonly occurring value
of a feature from a frequency distribution or histogram.
The Examiner argues that "appellant has failed to demonstrate
that anything of patentable novelty, other than the well-known
steps of generating a histogram and finding the peak, is
claimed" (EA4).4
Claim 1 recites more than the well-known step of
determining a standard value from a frequency distribution:
Claim 1 uses the term "frequency distribution" rather4
than "histogram" and "standard dimensional value" rather than
"peak." A "histogram" is a particular representation (using
rectangles) of a frequency distribution. The "standard
dimensional value" could be the value where the frequency
distribution has a peak, but this is not claimed.
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