Appeal 2007-0965
Application 10/264,573
line). Likewise, in the “Response to Argument” section of the Answer, the
Examiner does not address independent claim 16 separately from
independent claims 7 and 12 (see Answer 12-16). In reviewing the
Examiner’s rejection, we find the Examiner has failed to point to a specific
teaching in either Burkes or Bertin that meets the recited negative limitation
of “wherein data is not moved [i.e., migrated] if the utilization rate is greater
than or equal to a threshold utilization rate” (claim 16). Therefore, 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 claim 16 as being unpatentable over
Burkes in view of Bertin.
DEPENDENT CLAIMS 17-22
Since dependent claims 17-22 each contain the limitations of
independent claim 16, we will also reverse the Examiner’s rejection of these
claims as being unpatentable over Burkes in view of Bertin.
DECISION
We sustain the Examiner’s rejection of claims 1-6, but we reverse the
Examiner’s rejection of claims 7-22. Therefore, the decision of the
Examiner rejecting claims 1-22 is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
10
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: September 9, 2013