Appeal No. 2004-0511
Application 09/375,817
as to maintain a mathematical relationship between the two
classes of the fund as recited in claim 2. Whatever the
mathematical relationship is, the claims require that the
relationship be maintained, that is, not changed. Wallman ’098
provides no disclosure of maintaining some mathematical
relationship between the securities within his portfolio.
Since we have not sustained the examiner’s rejection of
independent claim 1, we also do not sustain the examiner’s
rejection of any of the dependent claims under 35 U.S.C. § 102.
With respect to the rejection of claims 34-39 as being
unpatentable over the teachings of Wallman ’098 and Wallman ’210,
we will not sustain this rejection of the claims because the
examiner has failed to establish a prima facie case of
obviousness. The deficiencies in Wallman ’098 discussed above
render the rejection of these claims improper for the same
reasons discussed above. Wallman ’210 does not overcome these
noted deficiencies.
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