Appeal No. 2000-0753
Application 08/909,545
figure 13A-13B; figure 41, marking 9103). Each cut through a
track broadly represents a location within a continuous spiral
track as shown in figures 2C and 2D.
The examiner interpreted "within a continuous spiral track"
as "any location on the disk having a spiral track" (FR2). We
agree with appellant's argument (Br7) that this is an erroneous
interpretation. However, it has not been shown that the mark in
Oshima '301 which cuts across the spiral track several times
(figure 2C) does not have a mark within the spiral track.
The examiner states (EA4; see also EA6):
[A]lthough the references do not disclose the use of placing
at least one mark on at least one location within spiral
data track on the disk, such limitation is merely an
alternative equivalent to placing at least one mark on at
least one location on a concentric track within the disk
data area. Furthermore such limitation is suggested in the
references as illustrated in Oshima et al (301) in
figures 2D and fig 3 showing a marking within a data track
and figs 13A, 13B and 19 showing spiral data tracks on the
disk . . . .
By stating that placing a mark on a spiral data track is an
alternative to placing a mark on a concentric track, it appears
that the examiner finds that Oshima '301 does not disclose a
spiral data track, which finding is clearly erroneous. This
erroneous "difference" appears to be the reason for the
obviousness rejection since no other "differences" are addressed.
As we have found, the mark in Oshima '301 has several locations
which are within the continuous spiral track. The examiner's
finding of a difference which does not exist is harmless error.
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