Appeal No. 2004-2127 Page 6
Application No. 09/441,693
claims 2 and 3 require determining, for each of at least two consecutive time windows,
whether a network complies with an SLA and, for each of the windows, accruing a
negative revenue increment for each unit of offered bandwidth lost while the network is
non-compliant.
2. OBVIOUSNESS DETERMINATION
Having determined what subject matter is being claimed, the next inquiry is
whether the subject matter would have been obvious. "In rejecting claims under 35
U.S.C. Section 103, the examiner bears the initial burden of presenting a prima facie
case of obviousness." In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed.
Cir. 1993) (citing In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992)). "'A prima facie case of obviousness is established when the teachings from the
prior art itself would appear to have suggested the claimed subject matter to a person of
ordinary skill in the art.'" In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529, 1531 (Fed.
Cir. 1993) (quoting In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147 (CCPA
1976)).
Here, Grover "relates to control and pricing of telecommunication traffic." Col. 1,
ll. 5-6. Generally, "idle time in the network is sold to subscribers willing to place delay-
tolerant calls." (Appeal Br. at 5.) The passage of the reference quoted by the examiner
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