Appeal No. 2006-0509 4
Application No. 09/425,088
provider based on the measured performance.” According to the examiner (answer,
page 4), “Tunnicliffe teaches a system for measuring performance of a service
implementation and modifying an estimated capacity of a service provider based on the
measured performance (col. 6, lines 53-67 and col. 7, lines 1-3).” Based upon the
teachings of Tunnicliffe, the examiner concludes (answer, page 4) that “[i]t would have
been obvious to one of ordinary skill in the Computer Networking art at the time of the
invention to combine the teachings of Somers regarding a service level agreement
implementation with the teachings of Tunnicliffe regarding modifying an estimated
capacity based on the measured performance because changing an estimated capacity
provides more flexibility for clients (Tunnicliffe col. 1, lines 11-35).”
Appellant argues (brief, page 8) that “the mere fact that Tunnicliffe discloses
determining a short-term demand on a network does not mean that Tunnicliffe discloses
or suggest[s] modifying an estimated capacity of the service provider based on the
measured performance,” and that “the alleged motivation (i.e., to provide more flexibility
for clients) is merely a conclusory statement regarding an alleged benefit of the
combination.”
We agree with appellant’s arguments. Nothing in Tunnicliffe teaches or would
have suggested to one of ordinary skill in the art modifying an estimated capacity of the
service provider based on a measured performance of a service implementation. The
mere speculation of the examiner as to the benefit (i.e., “more flexibility for clients”) of
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