Appeal 2007-0915
Application 10/764,946
1
2 5. In the Appeal Brief, under section (5) styled “Summary of Claimed
3 Subject Matter,” Applicants state that claim 1 includes “[a]t least one
4 command is selected for execution based on an optimized throughput benefit
5 (page 7 and figure 2) and/or an optimized operation rate benefit (page 8 and
6 figure 3), wherein the throughput benefit is determined based on a pipe
7 length ….” (Emphasis added) (Appeal Br. at 2-3).
8 6. The Examiner finally rejected independent claim 1 and dependent
9 claim 5 based on Clegg.
10 7. The Examiner argued that Clegg teaches both selecting a command
11 based on an optimized throughput benefit and an optimized operation rate
12 benefit (Answer 4).
13 8. For the optimized operation rate benefit feature, the Examiner
14 relied on Clegg column 2, lines 25-30 to column 3, line 4 (Answer 4 and 7).
15 9. In the Appeal Brief and Reply Briefs, Applicants’ argument is
16 based solely on that Clegg fails to describe “wherein the throughput benefit
17 is determined based at least in part on a pipe length” (emphasis added)
18 (Appeal Br. 4-5; Reply Br. 1-2, dated Sept. 19, 2006; Reply Br. 1-2, dated
19 Oct. 25, 2006).
20 10. Applicants do not dispute that Clegg describes selecting a
21 command for execution based on an optimized operation rate benefit.
22 D. Principles of Law
23 Claim interpretation is a question of law, but the subordinate findings
24 relating to proper claim construction are issues of fact. Claim elements must
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Last modified: September 9, 2013