Appeal No. 2004-2127 Page 7
Application No. 09/441,693
explains that "[i]n calculating revenue optimization, lost revenue from traffic
displacement should be accounted for wherein some degree of displacement would
occur from the foreground tariff-calling service to the background delay-tolerant service
mode." Col. 10, ll. 24-28. We are unpersuaded that the lost revenue, however, results
from bandwidth lost while a network is non-compliant with an SLA. Instead, we agree
with the appellants that the lost revenue results from "the shifting of traffic load from
foreground traffic (which is more expensive to the subscriber and thus generates more
revenue for the network) to cheaper background traffic." (Appeal Br. at 5.) We further
agree with them, moreover, that such a loss of revenue from displacement of traffic to
the less expensive background service "neither teaches nor suggests any pricing
structure containing a negative revenue increment." (Id.)
"With respect to core factual findings in a determination of patentability," In re
Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001), "deficiencies of
the cited references cannot be remedied by . . . general conclusions about what is 'basic
knowledge' or 'common sense' to one of ordinary skill in the art." Id. at 1285,
59 USPQ2d at 1697. Here, as aforementioned, the examiner alleges that "[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." (Examiner's Answer at 6.) Because such "rules
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