Appeal No. 2000-0379
Application No. 08/815,352
a sync mark pattern in accordance with the Cloke Criterion.
Id. at ¶ 10.
Finally, Hull states that in preparation for making the
declaration, he reviewed the Dudley patent and noted that
portions thereof, including the Background of the Invention at
column 3, lines 49-64, and the Detailed Description of the
Preferred Embodiment at column 6, line 65 to column 7, line
11, constitute a disclosure of the invention Cloke disclosed
to him and which he thereafter disclosed to certain employees
of Cirrus, including Behrens. Id. at ¶ 11.
The foregoing declarations, which are uncontroverted by
any other evidence of record, clearly demonstrate that the
"minimum correlation" encoding technique disclosed in the
Dudley patent and relied on by the examiner was invented by
Appellant and thereafter derived from Appellant by the
patentees through Hull. Consequently, we cannot sustain the §
102 rejection of claims 1-4 or the § 103 rejection of claim 5,
both of which are based on that subject matter in the Dudley
patent.
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