Appeal No. 1998-2699
Application 08/387,504
programmer would send the next best alternative. That would
be to transmit an XAllocColor request to access colors
available for sharing given that no private colors were
available. The teachings of Nye expect that each call be used
where APPROPRIATE. Other X Window calls, such as ... enable
the programmer to probe for the color capabilities and
limitations of each X Window display server before choosing
the appropriate color establishing calls."
We agree with Appellants' position because Nye is not
capable of accomplishing the color matching via a single call
but instead clearly relies on a method wherein an application
must allocate colors by trial and error, see page 200. The
mere allegation by the Examiner that the various steps of the
claimed method are obvious or are "simple" amounts to using
the Appellants' invention as a road map to achieve obviousness
of the claimed invention. We note that mere arguments do not
take the place of factual evidence. The Examiner has simply
indulged in speculation and conjuncture in asserting that the
claimed method steps are obvious to an artisan. Therefore, we
do not sustain the obviousness rejection of claim 1 over Nye.
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