Appeal 2007-0965
Application 10/264,573
INDEPENDENT CLAIMS 7 AND 12
We consider next the Examiner’s rejection of independent claim 7 as
being unpatentable over Burkes in view of Bertin.
Appellants argue that Burkes fails to teach or suggest creating free
space within the disk array, if the utilization rate is below a threshold
utilization rate, responsive to the amount of free space and the utilization,
wherein the free space is not created if the utilization rate is greater than or
equal to the threshold utilization rate whereby slowed response times that
could occur under conditions of high utilization are avoided. Appellants
further argue that nothing in the Bertin secondary reference remedies the
deficiencies of Burkes (Br. 8-10).
The Examiner disagrees. The Examiner notes that Burkes discloses a
system threshold of unused RAID-level storage (col. 9, ll. 35-40). The
Examiner also points out that Burkes discloses creating unused RAID areas
during idle time (col. 9, l. 65 through col. 10, l. 10). Therefore, the
Examiner corresponds Burkes’ disclosure of “idle time” to a time where the
utilization rate must be below a threshold value (Answer 14).
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598
(Fed. Cir. 1988). In so doing, the Examiner must make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148
USPQ 459, 467 (1966). “[T]he examiner bears the initial burden, on review
of the prior art or on any other ground, of presenting a prima facie case of
unpatentability.” In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
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