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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