Appeal No. 2000-1643
Application No. 08/897,900
Gimple both relate to program distribution systems is insufficient as a basis to combine
them. Appellant asserts that the two references are nonanalogous art because they
relate to different fields of endeavor. Finally, appellant responds that each of the
portions of the prior art cited by the examiner fails to support the findings as asserted by
the examiner [reply brief].
We will not sustain the examiner’s rejection of claim 22 because the examiner
has failed to establish a prima facie case of obviousness. The teachings of the applied
prior art establish nothing more than the fact that the program segments of Yarbrough
can be comprised of a plurality of bits, frames or superframes. Thus, the applied prior
art teaches that as program segments in Yarbrough are transmitted to the users, these
segments may include a plurality of bits, frames or superframes. Even if the applied
prior art teaches this much, however, we agree with appellant that there is no teaching
that within any predetermined time interval a single (one) fragment of each program
segment is sent to the users’ receivers as claimed. The examiner asserts that this is
inherent to appellant’s invention, but this assertion is not relevant to the obviousness of
the claimed invention. The examiner has failed to identify where within the applied prior
art there is any suggestion to transmit one fragment of each program segment to users’
receivers as recited in claim 22. We agree with appellant that the portions of the
prior art cited by the examiner do not support the examiner’s position. Therefore, we do
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