Appeal 2007-1724
Application 10/284,347
988, 78 USPQ2d at 1336). Further, as pointed out by our reviewing court,
we must first determine the scope of the claim. “[T]he name of the game is
the claim.” In re Hiniker Co., 150 F.3d 1362, 1369, 47 USPQ2d 1523, 1529
(Fed. Cir. 1998). Therefore, we look to the limitations as recited and
disputed in independent claim 1.
At the outset, we note that Appellant’s main contention in the
principal Brief is that with respect to Engel, Appellant disputes the
Examiner's reliance upon network wires to constitute a “device” as recited in
independent claim 1. Appellant’s further argue that the described collecting
performance statistics relating to network segments in Engel is not to
“device” performance (for a network) (Br 12-13).
Appellant maintains that the Specification contains a definition of the
term "device" (Br. 14). Appellant contends that the Specification
specifically distinguishes between “devices” such as workstations, servers,
disk arrays, tape back-ups, systems, and “connectors,” such as, fiber-optic
channels, copper land lines, or wireless communication links. Appellant
contends that the interpretation of "device" asserted by the Examiner is not
consistent with the interpretation offered in the Specification. Appellant
further contends that the Examiner's interpretation of the term "device" is
inconsistent with the term as understood by one skilled in the art. (Br. 14-
15).
The Examiner maintains that the interpretation of the claim language
"one or more devices in the network," as applied by the Examiner, is
reasonable in light of the lack of an explicit definition of the term in
Appellant’s Specification. The Examiner identifies that Appellant’s
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