Appeal No. 2003-1036
Application No. 09/330,865
fact." Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617, citing McElmurry v. Arkansas
Power & Light Co., 995 F.2d 1576, 1578, 27 USPQ2d 1129, 1131 (Fed. Cir. 1993) .
Further, as pointed out by our reviewing court, we must first determine the scope of
the claim. "[T]he name of the game is the claim." In re Hiniker Co., 150 F.3d 1362, 1369,
47 USPQ2d 1523, 1529 (Fed. Cir. 1998). Therefore, we look to the limitations set forth in
independent claim 1.
Appellants argue that the examiner admits that Myre does not teach the “sequence
number assignment logic, performed by the computer system, for generating a
recoverable, unique sequence number for assignment to an application when requested
by the application, wherein subsequent ones of the sequence number can be assigned to
applications concurrently without waiting for other applications which have been previously
assigned the sequence number, and for periodically checkpointing the sequence number
to a data storage device connected to the computer, wherein the checkpointed sequence
number is used to initialize the sequence number assignment logic” and that Zbikowski
does not remedy this deficiency in Myre. Appellant argues that Zbikowski merely
describes the steps used in recovering a list of files stored in a change table as well as
tracking files awaiting background processing. Appellants maintain that Zbikowski
teaches nothing about concurrent assignment of sequence numbers. (Brief at pages 9-10.)
We agree with appellants that Zbikowski and Myre teach the use of sequence
numbers, but do not teach or fairly suggest the concurrent assignment of sequence
numbers as recited in independent claim 1.
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