Appeal No. 2002-2176 Page 6
Application No. 08/948,931
If the regular BIOS 304 and the alternate BIOS 314 produce the same
data, and if that data is what would be expected in an uninfected system,
then the target is probably not infected. On the other hand, suppose the
regular BIOS 304 produces the data expected in an uninfected system but
the alternate BIOS 314 does not. . . . [T]hen the target is probably
infected; the regular BIOS 304 calls were probably redirected to a facade
copy of the target data by a stealth virus which has just now been
revealed by the invention.
(Spec. at 18-19.) Reading the limitations in light of the specification, claims 1, 18, and
31 require using a native BIOS or an operating system to read a target of a virus, using
a virus detector's private BIOS to read the same target, and comparing data resulting
from the two reads.
2. OBVIOUSNESS DETERMINATION
Having determined what subject matter is being claimed, the next inquiry is
whether the subject matter would have been obvious. "In rejecting claims under 35
U.S.C. Section 103, the examiner bears the initial burden of presenting a prima facie
case of obviousness." In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956
(Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992)). "'A prima facie case of obviousness is established when the
teachings from the prior art itself would . . . have suggested the claimed subject matter
to a person of ordinary skill in the art.'" In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529,
1531 (Fed. Cir. 1993) (quoting In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143,
147 (CCPA 1976)).
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