Appeal No. 2004-1082
Application No. 09/106,166
(optimistic) or only after commit (pessimistic).” If writers do
the choosing as to optimistic mode or pessimistic mode, then the
switching between modes would appear to be static, rather than
dynamic, as required by the claimed subject matter. At best,
Strom would appear to be unclear on the teaching of “dynamically
switching.” Accordingly, at best, we could only reach a
conclusion of anticipation by speculating and a proper rejection
under 35 U.S.C. § 102(e) cannot be based on speculation.
Therefore, we will not sustain the rejection of claims 1-16 under
35 U.S.C. § 102(e) based on Strom.
Since we have sustained the rejection of claims 1, 7 and 12-
16 over Alonso, under 35 U.S.C. § 102(e), but we have not
sustained the rejection of claims 2-6 over Alonso, or the
rejection of claims 1-16 over Strom, under 35 U.S.C. § 102(e),
the examiner’s decision is affirmed-in-part.
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