Appeal No. 2004-1082
Application No. 09/106,166
conflict “rate” to be monitored or specified and that the dynamic
switching is based on this conflict rate. The examiner relies on
column 10, lines 15-59, of Alonso for such a teaching, finding
that the disclosed upper and lower limits for a number of
conflicts is, somehow, indicative of the claimed conflict “rate.”
We disagree. A “rate” is clearly something that occurs per unit
of time and there is simply no disclosure or suggestion in Alonso
of any conflict per unit of time. The upper and lower limits of
Alonso may establish a range for conflicts, but there is no
suggestion of monitoring conflict “rates” and basing the dynamic
switching of the optimistic and pessimistic operating modes on
such “rates.” Therefore, we find that the examiner has not
established a case of prima facie anticipation by Alonso with
regard to claims 2-6.
We also will not sustain the rejection of claims 1-16 under
35 U.S.C. § 102(e) over Strom.1
At page 5 of the reply brief, appellants appear to admit
that Strom teaches optimistic notifications and pessimistic
1There is a question as to whether Strom is even a viable
reference under 35 U.S.C. § 102(e) since appellants point out
that this reference is appellants’ own work, and it bears a date
only two months prior to the filing of the present application.
The examiner provides no comment on this allegation.
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