Appeal No. 1999-0855
Application No. 08/730,468
that
“ . . . [t]here is never more than one unattached subtree per
level. (Amsbury, page 457). The Examiner has provided no
indication as to how and where the skilled artisan might have
found it obvious to apply the teachings of Amsbury to modify
APA to arrive at the particular sorting procedure of the
claimed invention. The mere fact that the prior art may be
modified in the manner suggested by the Examiner does not make
the modification obvious unless the prior art suggested the
desirability of the modification. In re Fritch, 972 F.2d
1260, 1266 n.14, 23 USPQ2d 1780, 1783-84 n.14 (Fed. Cir.
1992).
We are in further agreement with Appellant (Brief, page
8) that, even assuming arguendo that proper motivation exists
for combining APA with Amsbury, the proposed combination would
not result in the invention as claimed. Each of the appealed
independent claims 17 and 21 require the initialization of a
sort tree in combination with the entry of data record
identifiers into the sort tree, a feature which eliminates the
need to know the number of records before building a sort
tree. We agree with Appellant that Amsbury, in contrast, at
8
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