Appeal 2007-1951
Application 10/120,016
Our reviewing court has said “[A] reference may be said to teach
away when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be
lead in a direction divergent from the path that was taken by the applicant.
The degree of teaching away will of course depend upon the particular facts;
in general, a reference will teach away if it suggests that the line of
development flowing from the reference’s disclosure is unlikely to be
productive of the result sought by the applicant.” In re Gurley, 27 F.3d 551,
553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994) (citing United States V.
Adams, 383 U.S. 39, 52, 148 USPQ 479, 484 (1966)). However, a reference
that “teaches away” does not pre se preclude a prima facie case of
obviousness, but rather the “teaching away” of the reference is a factor to be
considered in determining unobviousness. Id 27 F.3d at 552, 31 USPQ 2d at
1132.
FINDINGS OF FACT
1. Hitz teaches a method for maintaining consistent states of a
file system. (Abstract).
2. Hitz uses a system that is block based which uses inodes to
describe files. (Col. 5, ll. 50-60).
3. Hitz’s system takes a snapshot of the file system. The
snapshot is a read only copy of the system at any given point
of time. The Snapshot makes use of a snapshot inode that
refers to exactly the same blocks as the system file at the
time the snapshot is taken. (Col. 17, l. 65-col. 18, l. 23).
4. Subsequent modifications to the data file are written to
unused disk portions, and the system inode files are updated
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