Ex Parte Walls et al - Page 8

                Appeal 2007-1573                                                                             
                Application 10/705,094                                                                       
                                                                                                            
                merely alleges what is known in the art -- a finding that is germane to                      
                obviousness, not anticipation.                                                               
                      In sum, we find the Examiner’s contention that Narayanaswami                           
                analyzes the time taken by the processors by assessing their workloads                       
                speculative at best.  Anticipation rejections, however, must be based on facts               
                found either expressly or inherently within the reference -- not speculation.                
                      In reaching our conclusion, however, we emphasize that we are                          
                constrained by the record before us.  We cannot say that no prior art exists                 
                that would teach or suggest that analyzing the workload of a given processor                 
                involves assessing the time taken to process such a workload.  We can say,                   
                however, that no such prior art has been applied in this record.                             
                      For the foregoing reasons, we will not sustain the Examiner’s                          
                rejection of representative claim 44.  Likewise, we will not sustain the                     
                rejection of claims 45-48, 50, 52-61, and 65 which fall with claim 44.                       

















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