Appeal 2007-0965
Application 10/264,573
instant claims 7 and 12). Furthermore, we agree with Appellants that
nothing in Bertin cures the deficiencies of Burkes.
Because we find the combination of Burkes and Bertin fails to teach
or fairly suggest all the recited limitations, we agree with Appellants that the
Examiner has failed to meet the burden of presenting a prima facie case of
obviousness. Accordingly, we will reverse the Examiner’s rejection of
independent claims 7 and 12 as being unpatentable over Burkes in view of
Bertin.
DEPENDENT CLAIMS 8-11 AND 13-15
Since dependent claims 8-11 and 13-15 each contain the limitations of
their associated independent claims, we will also reverse the Examiner’s
rejection of these dependent claims as being unpatentable over Burkes in
view of Bertin.
INDEPENDENT CLAIM 16
We consider next the Examiner’s rejection of independent claim 16 as
being unpatentable over Burkes in view of Bertin.
Appellants argue that Burkes fails to teach or suggest means for
selectively moving the data within the storage means responsive to the
quantity determined by the determining means and the rate measured by the
measuring means, such that free space is created within the storage means,
but wherein the data is not moved if the utilization rate is greater than or
equal to a threshold utilization rate. Appellants further argue that nothing in
the Bertin secondary reference remedies the deficiencies of Burkes (Br. 10).
We note that the Examiner has rejected independent claim 16 for the
same reasons previously given for independent claim 7 (see Answer 9, last
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