Appeal 2007-0261
Application 09/915,070
§ 103. It appears that Appellant has essentially argued the features of
independent claim 1 as also representative of the features of independent
claim 13. Claim 8 is argued to be representative of the features of dependent
claim 20, and the same may be said of dependent claim 9 with respect to
corresponding limitations in dependent claim 21.
Turning first to the features recited in independent claim 1 on appeal,
the claimed first data path and second data path are not recited to be
different. They may, in fact, be the same path with different, discrete times
of monitoring or times of day, for example. The comparing function, in
contrast to the position set forth at the bottom of page 9 of the Brief, does
not recite “comparing the utilization of the first data path (to or with) the
second data path but merely comparing the first data path “and” the second
data path. As disclosed at the top of page 12 of the Specification as filed, for
example, the comparison is with respect to preselected parameter values. As
disclosed, the claimed utilization relates to the use of a data path. The
“preselected amount” recited at the end of independent claims 1 and 13 on
appeal may be zero since no amount is specified. The same may be said of
the “preselected value” recited in claim 8 on appeal. Likewise, the
correspondingly broadly recited “previous measurements” of dependent
claim 9 encompass features where these measurements were zero or one.
In contrast to Appellant’s positions at pages 8 through 10 of the Brief
that Waclawsky fails to teach or suggest all the limitations of independent
claims 1 and 13 on appeal, we do not agree with this view. The focus of the
arguments as to these claims relates to the “providing” clause at the end of
each claim on appeal. The basic thrust of Appellant’s positions here is that
the disclosure in Waclawsky relates to monitoring devices per se over time
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