Appeal 2007-1238
Application 10/037,595
Have Appellants shown2 that the Examiner failed to establish that one of
ordinary skill in the art, at the time of the invention, would have found that
the combined disclosures of Nair and Beighe render the claimed invention
unpatentable under 35 U.S.C. § 103(a)? More particularly, would the
ordinarily skilled artisan have found that Nair’s disclosure of allocating
buffers to the protocol software modules teaches Appellants’ claimed
allocation of buffers to server applications?
FINDINGS OF FACT
The following findings of fact are supported by a preponderance
of the evidence.
The Invention
1. Appellants invented a method and system for controlling the usage of
a system-supplied buffer (356) during the exchange of data between
applications of a server (310) and applications of a client (370) via a
network-based socket (404) in a distributed computing environment (300).
(Specification 5 and 10.)
2 In the examination of a patent application, the Examiner bears the
initial burden of showing a prima facie case of unpatentability. In re
Piasecki 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). When
that burden is met, the burden then shifts to the applicant to rebut. Id.; see
also In re Harris, 409 F.3d 1339, 1343-44, 74 USPQ2d 1951, 1954-55 (Fed.
Cir. 2005) (finding rebuttal evidence unpersuasive). If the applicant
produces rebuttal evidence of adequate weight, the prima facie case of
unpatentability is dissipated. Piasecki, 745 F.2d at 1472, 223 USPQ at 788.
Thereafter, patentability is determined in view of the entire record. Id.
However, on appeal to the Board it is an appellant's burden to establish that
the Examiner did not sustain the necessary burden and to show that the
Examiner erred -- on appeal we will not start with a presumption that the
Examiner is wrong.
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