Appeal No. 2003-0186
Application No. 09/033,529
Opinion
With full consideration being given to the subject matter on appeal the
examiner’s rejection and the arguments of the appellants and the examiner, for
the reasons stated infra we will not sustain the examiner’s rejection of Claims 1,
3 and 4 under 35 U.S.C. § 102 nor the rejection of Claims 2, 5, 6, 15-25 and
29-39 under 35 U.S.C. § 103.
In order to consider the examiner’s application of the applied prior art to
the appealed claims, we must first interpret the claims in light of the written
description in appellants’ specification as it would be interpreted by one of
ordinary skill in this art. See generally, In re Hyatt, 211 F.3d 1367, 1372, 54
USPQ2d 1664, 1667 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55, 44
USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22, 13
USPQ2d 1320, 1322 (Fed. Cir. 1989).
Independent claim 1 includes the limitation "the number of cycles for the
non-expedite requests being monitored by a non expedite counter.” Independent
claims 15 and 29 contain similar limitations.
We interpret the scope of these limitations to include a monitoring step
that observes the total amount of time to perform non-expedite requests.
In making this finding we look to both the plain meaning of the words used
in the claim and the appellants’ specification. The term “monitoring” and
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