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. 8Page: Previous 1 2 3 4 5 6 7 8 9 Next
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