Appeal No. 2004-2227
Application No. 09/726,868
OPINION
We reverse.
In representative independent claim 1 on appeal, it is stated “the
target storage device further operable for storing the first and second delta
difference data at the same point in time.” This same concept of storing
the delta difference data at the same point in time is repeated in similar
terms in other independent claims on appeal or alternatively recited in the
manner of “simultaneously storing” this data. In this respect then we
agree with the common argument set forth by appellants in the brief and
reply brief that this is the point of distinction leading to the reversal of the
rejection of the claims on appeal under 35 U.S.C. §§ 102 and 103.
In studying the statement of the rejection of the claims on appeal
under 35 U.S.C. § 102 as set forth in the answer, in some instances for
some of the independent claims the examiner does allege that Burns
teaches this feature. In other independent claims, even though it is
recited, it not argued to be recognized by the examiner to be a feature for
which the examiner is responsible to determine a correlation to Burns. We
therefore do not agree with the examiner’s observation in the Responsive
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