Appeal No. 2006-1109 Page 4
Application No. 09/843,882
The appellants make the following argument.
"The above-cited passages discuss changes to the rates of the average
queuing time and the existence of contentions, respectively, and thus do
not discuss calculating a change in the rate at which a set of data is
moved in response to a monitored performance of at least one executing
application. These passages also fail to disclose that the rate at which the
set of data is moved is modified in accordance with the calculated
change." (Appeal Br. at 13.)
In addressing the point of contention, the Board conducts a two-step analysis.
First, we construe the independent claims at issue to determine their scope. Second,
we determine whether the construed claims would have been obvious.
A. CLAIM CONSTRUCTION
"Analysis begins with a key legal question — what is the invention claimed?"
Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1567, 1 USPQ2d 1593, 1597 (Fed.
Cir. 1987). In answering the question "[t]he Patent and Trademark Office (PTO) must
consider all claim limitations when determining patentability of an invention over the
prior art." In re Lowry, 32 F.3d 1579, 1582, 32 USPQ2d 1031, 1034 (Fed. Cir. 1994)
(citing In re Gulack, 703 F.2d 1381, 1385, 217 USPQ 401, 403-04 (Fed. Cir. 1983)).
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