Appeal No. 2003-0186
Application No. 09/033,529
measuring latency, the amount of time a request is pending, is not the same as
monitoring the amount of time to perform a request. Further, we find no counter
in Barnaby et al. which measures the total amount of time to perform the
requests of one specific priority.
Accordingly we will not sustain the examiner’s rejection of claims 1, 3 and
4 over Barnaby et al.
Next we consider the rejections based upon 35 U.S.C. § 103. It is the
burden of the examiner to establish why one having ordinary skill in the art would
have been led to the claimed invention by the express teachings or suggestions
found in the prior art, or by the implication contained in such teachings or
suggestions. In re Sernaker, 702 F2d 989, 995, 217 USPQ 1, 6 (Fed. Cir.
1983). “Additionally, when determining obviousness, the claimed invention
should be considered as a whole; there is no legally recognizable “heart’ of the
invention.” Para-Ordnance MFG. V SGS Importers Int’l Inc., 73 F3d 1085, 1087,
37 USPQ2d 1237, 1239 (Fed. Cir. 1995) (citing W.L. Gore & Assocs., Inc.
Garlock, Inc., 721 F2d 1540, 1548, 220 USPQ 303, 309 (Fed. Cir. 1983), cert.
denied, 469 U.S. 851 (1984)).
We first consider the rejection of claim 2 under 35 U.S.C. § 103 as being
unpatentable over Barnaby et al in view of Horan et al. Claim 2 is dependent
upon claim 1, and necessarily includes the limitation of a non-expedite counter
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