Appeal No. 2004-2127 Page 4
Application No. 09/441,693
measured value of carried stream bandwidth is at least a contracted value
thereof, but otherwise the network is non-compliant.
Claims 2 and 3 stand rejected under 35 U.S.C. § 103(a) as obvious over U.S.
Patent No. 5,719,854 ("Choudhury"); U.S. Patent No. 5,838,920 ("Rosborough"); and
U.S. Patent No. 5,848,139 ("Grover").
OPINION
Rather than reiterate the positions of the examiner or the appellants in toto, we
focus on the point of contention therebetween. Admitting that "Choudhury/Rosborough
do not disclose loss of revenue due to packet loss," (Examiner's Answer at 4), the
examiner notes that "Grover, however, does disclose calculating revenue optimization,
and '. . . lost revenue from traffic displacement should be accounted for wherein some
degree of displacement would occur. . . .' (Column 10, lines 25-34)." (Id.) He then
alleges, "[o]ne of ordinary skill in any transaction-related art would consider a refund, or
a credit, or a reduction of debits due to non-receipt of goods or services one of the
unwritten, and accordingly obvious, rules of the road." (Id. at 6.) The appellants argue
that the claimed "negative revenue increment is not a refund. Instead, it is a penalty –-
essentially a fine paid out-of-pocket by the service provider to the customer." (Reply Br.
at 2.) They further argue "that none of the cited references, either singly or in
combination, teach or suggest those features of Applicants' claims 2 and 3 that relate to
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