Appeal No. 2006-2412 Page 3
Application No. 09/892,424
functional limitations. RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440,
1444, 221 USPQ 385, 388 (Fed. Cir. 1984).
All of the claims on appeal require an affirmative action by the user of the
computer where the performance data is collected before the user can gain access to the
performance data. For example, execution of the performance data access mechanism
(claims 1 through 7 and 15 through 22) or enabling a performance data transmission
mechanism or step (claims 8 through 14) has to be performed before the user can gain
access to the performance data. In Duimovich, the performance data collected by a User
Site 50 is accessible by the user, and is transferred to a Director Server Site 120 without
any affirmative action on the part of the user at the User Site (paragraph 0033).
In summary, the anticipation rejection of claims 1 through 22 is reversed because
the performance data in Duimovich is transferred without any requirement that the user
take an affirmative action to gain access to such data.
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