Appeal No. 2004-0434
Application No. 09/836,686
we find that Berstis teaches performing digital audio file
transfers between first and second portable devices (facts 1-4)
where there is also a transfer of copy control information (fact
6). We note that Berstis is silent as to the specific part of
the copy control information that is transferred. However, we
find that in the situation where there is copying of a set number
of "permitted copies" (fact 5), one of ordinary skill in the art
would recognize that the copy tracking (fact 10) of Berstis would
be inoperative if the transferred copy control information (fact
6) did not include a count of the number of permitted copies
(fact 5). Therefore, Berstis teaches "sending a transfer count
from a first portable device to a second portable device."
Appellant's further argument, "nowhere does Berstis (or
Abecassis) disclose or suggest, a method in which a music file is
transferred to a second portable device from a first portable
device" is equally unpersuasive. A person skilled in the art
would recognize that Berstis teaches multi-stage file transfers
from a first device to a second device and then to a third device
(facts 7-10). See for example, Berstis figure 4, the transfer
from item 44 (a first portable device) to item 24 (a second
portable device), and then to device 26. We find that the
combination of Berstis and Abecassis teach a "method in which a
10
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