Appeal No. 1999-0004
Application 08/593,309
substantially easier to consider the issues on appeal. Having
said that, however, we must also note that the examiner’s
response to appellants’ arguments with the statement “The
examiner does not agree” followed by a simple reiteration of
the rejection is not very helpful in determining the merits of
the examiner’s position. As noted above, a determination of
obviousness requires the fact finder to consider the relative
persuasiveness of the positions articulated by the examiner
and appellants. The examiner’s response to arguments section
of the answer adds nothing to buttress the persuasiveness of
the examiner’s original rejection.
For example, appellants have raised two serious
deficiencies in the examiner’s interpretation of Alpert.
First, appellants note that in the first aspect of Alpert,
there is no external source for inputting information into the
compiler. Instead, Alpert requires that the source code be
changed by a programmer and then recompiled. Second,
appellants note that in the second aspect of Alpert, Alpert
teaches a separate optimizer program which is apart from the
compiler and optimizes an already compiled object file.
According to appellants, this separate optimizer means that
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