Appeal No. 2004-0098
Application No. 09/393,082
7-11.) The examiner responds that appellants’ argument that Lam’s tree convolution
algorithm is only directed to obtaining performance information for network “is an
appellants’ intended use.” Further, appellants’ assertion that Lam has no teaching of
applying the tree convolution algorithm for a set of byte code sequences is another
“appellants’ intended use. Appellants ignore the fact that Lam’s teaching is a method of
implementation, and thus the method is applied to all hierarchy structures like bytecode
tree structure.” (Answer at 8.) Appellants respond, in turn (Reply Brief at 2-5), that the
arguments are directed to explicit features recited in the claims, rather than “intended
use.”
We do not completely understand the examiner’s response to appellants’
argument. Claim 6 positively recites generating a bytecode sequence tree data
structure from a set of bytecode sequences, and convolving the bytecode sequence
tree data structure into a bytecode subsequence occurrence tree data structure. We
consider the claim 6 limitations and the related limitations in the remainder of the claims
to, clearly, not represent mere “intended use.” The examiner’s comments at page 8 of
the Answer might also reflect an opinion that Lam’s teaching, being a “principle of
mathematics,” should be freely applicable to any tree structure.
In any event, we agree with appellants that the rejection fails to show any
teaching or suggestion from the prior art for making the proposed combination. Lam
discloses the tree convolution algorithm as being applicable to queuing networks in the
modeling of computer systems and communication networks, such as the packet-
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