Appeal No. 2006-2363
Application No. 10/015,880
probability and determinism (brief, pages 6-7). Appellant
further points out that Balph=s counters generate number in a
sequential manner resulting in an even layout of numbers in a
Auniform@ deterministic distribution (brief, page 8) whereas
Resnikoff discloses only a probabilistic APoisson@ distribution.
We agree with Appellant that Balph=s disclosure lacks any
relationship with the Poisson probability function of Resnikoff.
Contrary to the Examiner=s assertion that the differences between
these two types of function are not of importance (answer, page
13), one of ordinary skill in the art would not have found it
obvious to apply the deterministic process of Balph to a
probabilistic process of Resnikoff. An obviousness analysis
commences with a review and consideration of all the pertinent
evidence and arguments. AIn reviewing the examiner=s decision on
appeal, the Board must necessarily weigh all of the evidence and
argument.@ In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). In this case, as discussed by Appellant
(brief, pages 7-9), the claims require a predictable process
which is also deterministic.
In view of our analysis above, we find that the Examiner has
failed to set forth a prima facie case of obviousness because the
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