Appeal No. 2006-1109 Page 5
Application No. 09/843,882
Here, claim 1 recites in pertinent part the following limitations: "moving a set of
data in a data storage system of a computer system; monitoring a performance of at
least one executing application, while said moving is in progress; calculating a change
in a rate of said moving in response to said monitored performance of the at least one
executing application. . . ." Claims 11, 16, and 23 include similar limitations.
Considering all these claim limitations, the independent claims require calculating a
change in the rate at which data are migrated in a computer's storage system.
B. OBVIOUSNESS DETERMINATION
"Having determined what subject matter is being claimed, the next inquiry is
whether the subject matter would have been obvious." Ex Parte Massingill,
No. 2003-0506, 2004 WL 1646421, at *3 (Bd.Pat.App & Int. 2004). "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)).
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