Appeal No. 2006-3034 Page 7
Application No. 09/855,115
being controlled by rate controllers 630 (fig. 6) and 710 (fig. 7), so as to
prevent buffer overflow and/or underflow (see Dieterich, col. 3, lines 40-46,
col. 6, lines 16-31 and 43-45) [answer, page 5].
In the reply brief, appellants assert that Dieterich’s disclosure
contradicts the examiner’s position at col. 6, lines 24-29:
The rate control module 630 serves to monitor and
adjust the bit rate of the data stream entering the
FIFO buffer 690 to prevent overflow and underflow
on the decoder side (within a receiver or target
storage device, not shown) after transmission of the
data stream [emphasis added in appellants’ brief].
Appellants conclude that rate control module 690 writes data into the
buffer at a bit rate such that a completely different buffer in a target receiver
will not overflow or underflow, in direct contrast to reading data out of the
buffer at a bit rate determined at least partially by the fullness of the buffer,
as required by the language of the instant independent claims [reply brief,
page 5].
After carefully considering all of the evidence before us, we agree with
appellants that the Dieterich reference is substantially silent with respect to
reading (i.e., outputting) the stored data out of the buffer at a bit rate
determined at least partially by the fullness of the buffer, as required by the
language of each independent claim [claims 1 and 6]. We find that to affirm
the examiner on this record would require speculation on our part.
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