Appeal No. 2006-2541
Application No. 09/832,438
sustain the Examiner’s rejection of the claims under 35 U.S.C. §103. See In
re Steele 305 F.2d 859, 134 USPQ 292 (CCPA 1962) (it is wrong to rely
upon speculative assumptions as to the meaning of claims and basing a
rejection under 35 U.S.C. §103 thereupon).
Nonetheless, inasmuch as Appellants intended the independent claims
to be commensurate with the specification, which on page 10 makes clear
that the total profit is obtained by subtracting all of the penalties from all of
the revenue generated, we do not find that the combination of the references
teach the claimed invention of allocating resources. We do not find that the
combination of Smith and Pappalardo teach allocating resources to respond
to requests to maximize profits where profits are calculated based upon
revenue for meeting service level agreements or a penalty if the service level
is not met. Smith teaches allocation of resources in response to demand, and
that a tiered rate schedule is used to determine the payment received for the
service. While this tiered rate schedule will generate increasing profits as
more resources are made available to meet the demand, it is the demand for
service, not the maximization of profits that determines allocation of
resources. Further, we find that Pappalardo teaches that there are rate
structures, which provide penalties to the service providers if the service
level is not met. However, Pappalardo does not teach how allocation of
resources is determined for individual requests.
For the forgoing reasons, we will not sustain the Examiner’s rejection
of claims 1, 3 through 15, 17 through 29 and 31 under 35 U.S.C. §103.
This decision contains a new ground of rejection pursuant to 37 CFR
§ 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12,
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