Appeal No. 2002-2073
Application No. 09/210,104 Page 6
1992). If that burden is met, the burden then shifts to the
applicant to overcome the prima facie case with argument and/or
evidence. Obviousness is then determined on the basis of the
evidence as a whole. See id.; In re Hedges, 783 F.2d 1038, 1039,
228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d
1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re
Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
Turning to claim 1, the examiner asserts (final rejection,
page 3) that "Borchardt does not specifically states [sic]
enabling said Execution Trace Facility to restart said program
and detect and correct said malfunction only in response to a
determining [sic] that a malfunction of said program has
occurred." The examiner's position (id.) is that “[i]t is well
known in the art that when a system to restart the program and
detect and correct malfunction, it common [sic] indicates a
malfunction has occurred, or when a malfunction has occurred, the
system would restart the program and detect and correct the
malfunction.” The examiner adds (id.) essentially that an
artisan would have used this common procedure by enabling the
Execution Trace Facility to restart the program and detect and
correct the malfunction only in response to determining that a
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007