Appeal No. 2003-1030
Application No. 08/820,181
this argument is not commensurate with the scope of independent claim 1. (See also
answer at page 13.) Therefore, this argument is not persuasive.
Appellant argues that claim 1 is appellant’s broadest claim and its patentability
rests on the argument that a stationary queue which is used to assure fair order is not
taught by either Davidson, Periwal or their combination. (Brief at page 16.) As
discussed above, we do not find that independent claim 1 requires an assurance of fair
order. Therefore, this argument is not persuasive.
Appellant reiterates similar arguments in the reply brief which we do not find
persuasive above, and we do not find that appellant has rebutted or shown error in the
prima facie case of obviousness. Therefore, we will sustain the rejection of
independent claim 1.
CLAIM 2
Appellant argues that Periwal does not provide for FIFO order. (Brief at page
16.) We do not find that the examiner has addressed or identified a teaching of a FIFO
order in either Davidson or Periwal. Therefore, we find that the examiner has not
established a prima facie case of obviousness. The examiner disputes appellant’s
usage of the term FIFO with respect to appellant’s disclosure at page 10 of the answer,
but does not address this explicit limitation in either the rejection or the arguments and
we find no express teaching in either reference with respect to FIFO order. Therefore,
we cannot sustain the rejection of independent claim 2 and its dependent claim 3.
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