Appeal No. 1999-0289
Application No. 08/336,690
digitized audio signals in the form of music” [emphasis ours].
Thus, we have the opinion of a qualified practitioner that
DATs were clearly not used for recording and reproducing anything
other than digitized audio signals in the form of music, together
with a description in the instant specification as to specific
formatting used to achieve recording and reproduction of medical
information and images by adapting DAT unit 3 (e.g., pages 7-11).
The examiner had the opportunity to rebut declarant’s allegation
by offering evidence showing the recording and/or reproducing of
information and/or image data on a DAT but the examiner has
failed to provide any such evidence.
Accordingly, in weighing the opinion of a qualified
practitioner in the art against the silence of the examiner with
regard to a specific showing of using a DAT for recording and/or
reproducing anything other than music, we find that the evidence
of record compels a finding for appellant. While we suspect that
the earliest personal computers, dating from the 1970's, prior to
the use of floppy discs, employed audio tape for storing digital
information other than music, we have no evidence of this on
record. Accordingly, while we find for appellant, that finding
is based on the accuracy of declarant’s statement that “the
state-of-the-art was such that DAT technology was being used only
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