Appeal 2007-0965
Application 10/264,573
The Examiner disagrees. The Examiner points to Appellants’
Specification that broadly defines the utilization rate (U) as follows:
d2) U is a measure of the rate at which access operations are
being performed (i.e., utilization) on storage 128 by users 156,
and is determined by the I/O monitor 118. U is a dynamically
changing value.
(Specification 6, ¶ 0025).
The Examiner notes that the Specification is silent with respect to the
argued features of a “maximum possible usage of the same thing” or a
“measurement of the maximum possible rate at which the array can be
accessed” (Answer 12-13). The Examiner further points out that the
definition of “utilization rate” proffered by Appellants calculates a ratio and
not a rate (i.e. where the ratio equals the rate of RAID array access divided
by the maximum possible rate of RAID array access)(Answer 13).
With respect to the argued limitation of using the controller to
measure a utilization rate at which the array is accessed, the Examiner
asserts that all access to Burkes’ memory must be facilitated by a controller.
Therefore, the Examiner finds that Burkes’ measurement of how often data
is accessed is a representation of the utilization rate of access using the
controller, since all accesses use the controller (Answer 13).
In the Reply Brief, Appellants provide various web page URL
addresses as extrinsic evidence to buttress their interpretation of the recited
“utilization rate” (Reply Br. 2-3).
In rejecting claims under 35 U.S.C. § 102, a single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation. Perricone v. Medicis Pharm.
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