Appeal No. 1999-0080
Application No. 08/558,929
appellants that the examiner has not shown support for the maintained position from the
prior art applied or set forth a convincing line of reasoning for this conclusion. Therefore,
we agree with appellants that the examiner has based his rejection upon hindsight. The
examiner maintains that “Arnold checks compatibility and does not load [the] operating
system if the hardware is not compatible. . . .” (See answer at page 6.) Here, the loading
of the ROM-BIOS and then (power on self test (POST) or) master boot record (MBR)
separation is for conservation of space in the ROM and not for the updating or modification
of an enabler file as recited in claim 21.
The examiner relies upon the claim language “may be replaced” for a broad claim
interpretation (answer at page 9-10) and suggests that “it is clear that when new
architectures emerge, Sherer et al will replace the files with an updated version; e.g.
elements 16, 18, 20, and 22 will have newer architectures.” The examiner provides no
support for this finding. We disagree with the examiner that it is clear that there would be
an update. We find that this is speculation and conjecture by the examiner. In our view,
Sherer and Arnold do not teach or suggest the updating of the enabler file.
The examiner maintains that “Sherer et al and Arnold et al can in fact be updated
anytime a change is made.” (See answer at page 11.) Here again, the examiner
speculates about updating, but the examiner points to no teaching in the
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