Appeal 2007-0965
Application 10/264,573
accessed by the user (col. 2, ll. 14-16). We also agree with the Examiner
that Appellants are reading limitations into the claims. We note that
patentability is based upon the claims. “It is the claims that measure the
invention.” SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121, 227
USPQ 577, 585 (Fed. Cir. 1985) (en banc).
With respect to Appellants’ argument that Burkes fails to disclose
measuring a utilization rate at which the array is accessed using the
controller, we disagree. We note that Burkes discloses that a disk array
controller coordinates data transfer to and from the disks (col. 1, ll. 60-63).
In particular, we find the language of the claim (i.e., “measuring a utilization
rate at which the array is accessed using the controller”) broadly but
reasonably reads on Burkes’ disclosure that “frequency distribution tables
are preferably formed in a volatile RAM in the disk array controller 14 and
rebuilt after each system initialization” (col. 11, ll. 51-53). Therefore, we
find that Burkes discloses all that is claimed. Accordingly, we will sustain
the Examiner’s rejection of representative claim 1 as being anticipated by
Burkes.
We note that Appellants have not presented any substantive
arguments directed separately to the patentability of dependent claims 2-6.
In the absence of a separate argument with respect to the dependent claims,
those claims stand or fall with the representative independent claim. See In
re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991). See
also 37 C.F.R. § 41.37(c)(1)(vii)(2004). Therefore, we will sustain the
Examiner’s rejection of claims 2-6 as being anticipated by Burkes for the
same reasons discussed supra with respect to independent claim 1.
6
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