Ex Parte Dubal

Board of Patent Appeals and Interferences

Mar 5, 2010

10207476 (B.P.A.I. Mar. 5, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte SCOTT P. DUBAL
____________________

Appeal 2009-010586
Application 10/207,476
Technology Center 2100
____________________

Decided: March 5, 2010
____________________

Before JAY P. LUCAS, JOHN A. JEFFERY, and DEBRA K. STEPHENS,
Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-010586
Application 10/207,476

2
Appellant appeals under 35 U.S.C. § 134(a) (2002) from a final
rejection of claims 1-33. We have jurisdiction under 35 U.S.C. § 6(b)
(2008).
We AFFIRM.
Introduction
According to Appellant, the invention relates to an apparatus, systems
and methods for managing resources related to the transfer and/or
communication of data (Spec. 1, ll. 6-7). For example, an apparatus
according to the present invention includes a monitoring module, an
adjustment module, and a driver module (Spec. 3, ll. 28-29). The driver
module is used as an interface to a network adapter (Spec. 4, l. 3). The
monitoring module is coupled to the driver module and compares the actual
throughput achieved by the driver module to a preselected reference
performance value (Spec. 4, ll. 9-11). If it is determined that the actual
throughput indication is less than the reference throughput value, the
adjustment module will adjust one or more selected parameter values for the
driver module to increase its performance (Abst. and Spec. 4, l. 26-5, l. 1).

STATEMENT OF THE CASE
Exemplary Claims
Claims 1 and 27 are exemplary and are reproduced below:
1. An apparatus, comprising:

a network adapter including hardware circuitry to couple to a
driver module;

a monitoring module capable of being communicatively
coupled to the driver module, the monitoring module to compare a
Appeal 2009-010586
Application 10/207,476

3
value associated with a throughput indication for the driver module to
a corresponding reference throughput value; and

an adjustment module capable of being communicatively
coupled to the monitoring module, the adjustment module to adjust a
parameter value associated with the driver module in response to the
monitoring module providing an indication that the value associated
with the throughput indication is less than the corresponding reference
throughput value.

27. A method of adjusting a network driver to improve
measured performance of the network driver, the method comprising:

accessing data identifying the measured performance of the
network driver and a performance threshold; and

based at least on the accessed data identifying the measured
performance of the network driver and the performance threshold,
changing at least one parameter that affects operation of the network
driver.

Prior Art
Timm 6,055,268 Apr. 25, 2000
Collin 6,314,475 B1 Nov. 6, 2001
Motoyama 6,915,337 B1 Jul. 5, 2005

Rejections
Claims 1-8 and 13-33 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Collin and Timm.
Claims 9-12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Collin, Timm, and Motoyama.

Appeal 2009-010586
Application 10/207,476

4

GROUPING OF CLAIMS
(1) Appellant argues claims 1-8 and 13-33 as a group on the basis of
claims 1, 13, and 20 (App. Br. 9). We select independent claim 1 as the
representative claim. We therefore treat claims 2-8, 14-19, and 21-26, which
depend from independent claims 1, 13, and 20 respectively, as standing or
falling with representative claims 1, 13, and 20 respectively.
(2) Appellant argues claim 27-33 separately on the basis of
independent claim 27 (id.). We select independent claim 27 as the
representative claim. We therefore treat claims and 28-33, which depend
from independent claim 27, as standing or falling with representative claim
27.
(3) Appellant argues claims 9-12 as a group on the basis of
independent claim 9 (id. at 14). We select claim 9 as the representative
claim. We therefore treat claims 10-12, which depend from claim 9, as
standing or falling with representative claim 9.
We accept Appellant’s grouping of the claims. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2008).

ISSUE 1
35 U.S.C. § 103(a): claims 1-8 and 13-26
Issue 1A
Appellant contends Timm does not teach a “value associated with a
throughput indication for a/the driver module,” as in claims 1, 13, and 20, as
Timm does not teach indicating throughput at all (App. Br. 10). Rather,
Appellant argues (1) Timm teaches bandwidth allocation (i.e., data rate)
Appeal 2009-010586
Application 10/207,476

5
independent of any throughput indication, or measured performance, and (2)
Timm’s request for bandwidth is not adjusted by the node (id. at 11).
Further, Appellant argues Timm’s “achievable rates” are not an indication of
actual throughput (id.).
The Examiner finds Timm teaches “using rate negotiation to achieve
communication channel efficiency in the presence of time-varying
characteristics” (Ans. 13). The Examiner also finds Timm discloses “the
rate negotiation method accounts for the time varying channel capacity and
conditions” since it “compares the throughput indication (actual capacity
available) to a corresponding reference value (requested rate)” (id. 14-15).
Additionally, the Examiner finds Timm teaches the lower layer may
reconfigure itself by changing operating parameters to achieve the requested
rate (id. at 15). The Examiner further finds the achievable rate (A), or
throughput, is compared to a corresponding reference value (R) (id. at 16).
The Examiner then finds “throughput” can mean wire speed (id.). Finally,
the Examiner finds Timm discloses indicating throughput, as the achievable
rate indicates the throughput (id.).

Issue 1A: Has Appellant shown the Examiner erred in finding Timm
teaches or suggests a throughput indication?

FINDINGS OF FACT (FF)
We find as follows:
Timm Reference
(1) Timm discloses a multimode digital modem having receiving
and transmitting paths (Abst.).
Appeal 2009-010586
Application 10/207,476

6
(2) Timm’s method of rate negotiation utilizes a DSL system
capable of varying rate (col. 6, ll. 54-55). An exemplary viable-rate DSL
(VRDSL) system can provide a variable upstream transmission throughput
up to 400 Kbps, and a downstream transmission throughput from 400 Kbps
to 2.048 Mbps (col. 6, ll. 55-59). However, Timm’s invention is not
constrained to these rates (col. 6, ll. 59-61).
(3) Figures 7a-f illustrate a preferred embodiment of rate
negotiation (col. 8, l. 21) and depict layers of a VRDSL communications
model (col. 22, ll. 18-19). The lowest layer 7330 is the Communications
Hardware Layer (col. 22, ll. 24-25). The second layer 7320 is the Hardware
Control Layer (col. 22, l. 38). The third layer 7310 is the Software Driver
Layer (col. 22, ll. 31-32). The fourth layer/top layer 7300 is the Application
Software Layer (col. 22, ll. 34-35).
(4) During rate negotiation, layers of the communication model
communicate and interact with each other (col. 22, ll. 51-52). “[A] layer can
indicate R (i.e., Rate Request) to a lower layer to initiate a rate negotiation,”
and the lower layer can indicate A (i.e., Available Rate Notify) to the upper
layer to notify the upper level of the achievable rates (col. 22, ll. 54-59).
Definitions
(5) “Indicate” is defined as “to point out,” and “indication” is
defined as “something that serves to indicate” MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 591 (10th ed. 2000).

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
Appeal 2009-010586
Application 10/207,476

7
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
Discussing the question of obviousness of claimed subject matter
involving a combination of known elements, KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398 (2007), explains:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill. Sakraida [v. Ag
Pro, Inc., 425 U.S. 273 (1976)] and Anderson's-Black Rock[,
Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969)] are
illustrative - a court must ask whether the improvement is more
than the predictable use of prior art elements according to their
established functions.

Id. at 417. If the claimed subject matter cannot be fairly characterized as
involving the simple substitution of one known element for another or the
mere application of a known technique to a piece of prior art ready for the
improvement, a holding of obviousness can be based on a showing that
“there was an apparent reason to combine the known elements in the fashion
claimed.” Id. at 418. Such a showing requires:
“some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness” . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
Appeal 2009-010586
Application 10/207,476

8

Id. (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

ANALYSIS
At the outset, we remind Appellant that in deciding this appeal, we
have considered only those arguments that Appellant submitted in the
Appeal and Reply Briefs. Arguments not argued are deemed to have been
waived. See 37 C.F.R. § 41.37(c)(1) (vii) (2008).
Appellant argues Timm’s “achievable rates” are not an indication of
actual throughput (App. Br. 11). However, claims 1, 13, and 20 do not
recite the term “actual” (see App. Br. 18-21, Claims App’x.) Further, we
find the Specification fails to provide an explicit definition for “throughput
indication.”
Looking to Timm, we find Timm teaches that a lower layer can
indicate A (i.e., Available Rate Notify) to the upper layer to notify the upper
level of the achievable rates (FF 4). We find Timm uses the terms
“throughput” and “rate” interchangeably, as, for example, Timm specifically
refers to throughput of 400 Kbps to 2.048 Mbps, and later refers back to
throughput generically as simply “rates” (FF 2). Thus, we find the terms
“rate” and “throughput” are interchangeable in Timm.
Further, we find Timm teaches a lower layer of a VRDSL
communications model that communicates an achievable rate to an upper
layer (FF 3-4). As throughput and rate are interchangeable (see discussion
supra), we find that Timm teaches that a lower layer communicates a
throughput rate to an upper layer.
Appeal 2009-010586
Application 10/207,476

9
Also, the term “indicate” is defined as “to point out” (FF 5). Since the
“achievable rate” as claimed serves as something that “points out” an
available throughput rate, we find that the available rate is a throughput
indication. Thus, we agree with the Examiner that Timm’s disclosure of an
“available rate” corresponds to a “throughput indication,” as in claims 1, 13,
and 20.

Issue 1B
Appellant contends that Collin fails to disclose adjusting parameters
when throughput is less than the reference throughput, as in claims 1, 13,
and 20 (App. Br. 9-10). Appellant argues “Timm’s request for bandwidth is
not adjusted by the node ‘… in response to the monitoring module providing
an indication that the value associated with the throughput indication is less
than the corresponding reference throughput value’” (id. at 10). Further,
Appellant contends “Timm teaches a … request for bandwidth, with
arbitration/assignment based on the request,” and “does not teach indicating
throughput at all” (id.).
Further, Appellant argues that the Examiner “confuses the specified
rate of communication taught in Timm . . . with the throughput value
claimed” (App. Br. 11). Appellant contends “Timm only speaks to
negotiating ‘achievable’ specified rates of communication, and does not
adjust operations depending on a ‘throughput indication,’ as claimed” (id.).
Additionally, Appellant contends the Examiner finds that “Timm
discloses that ‘rate negotiation techniques are used to deal with time-varying
maximum throughput’” (id.). However, Appellant argues that while
adjusting a rate of communication can affect the ultimate throughput, Timm
Appeal 2009-010586
Application 10/207,476

10
merely describes negotiations for achievable rates, which may be
constrained by a hardware chipset and do not have anything to do with an
indication of actual throughput in a medium (id.).
The Examiner finds Timm teaches that the lower layer may
reconfigure itself by changing operating parameters to achieve the requested
rate (Ans. 15). Further, the Examiner finds that during rate negotiation, if
the achievable throughput, with current parameter settings, drops below the
requested rate (i.e., reference value), then it would have been “obvious to
one of ordinary skill in the art to adjust parameters to attempt to continue to
provide the requested rate” (id.).

Issue 1B: Has Appellant shown the Examiner erred in finding the
combination of Collin and Timm teaches or suggests adjusting parameters in
response to a throughput indication?

ANALYSIS
As discussed above, with regard to Issue 1A, we find that an available
rate corresponds to a “throughput indication.” Thus, contrary to Appellant’s
arguments, Timm suggests a “throughput indication.”
Further, we find that one of ordinary skill in the art would have
recognized that the purpose of rate negotiation is to adjust the rate to the
requested rate if the rate is available (see FF 2-4). Thus, an adjustment is
based, at least in part, on the available rate (i.e., throughput indication).
Accordingly, we find Timm suggests performing an adjustment in response
to a throughput indication (i.e., available rate).
Appeal 2009-010586
Application 10/207,476

11

ISSUE 2
35 U.S.C. § 103(a): claims 27-33
Issue 2A
Appellant contends Timm does not teach “accessing data identifying
measured performance of the network driver,” as in claim 27 (App. Br. 10).
With respect to independent claim 27, Appellant makes arguments that are
similar to those made with respect to claim 1. For example, Appellant
argues “Timm does not teach indicating throughput at all” (id.).
Appellant also contends that the Examiner relies on Collin for
teaching “accessing data identifying the measured performance of the
network driver and a performance threshold,” as recited in claim 27 (id. at
11). Appellant argues the Examiner contends “that Collin implies that the
settings for the MIN/MAX rates are retrievable as part of the settings
information which is used to determine if the configuration needs to be
modified,” and either relies on inherency or on the Examiner’s personal
knowledge to reach this conclusion (id. at 11-12).
However, Appellant argues there is no technical reason why the
MIN/MAX rates of Collin referenced by the Examiner “may not be used as
hardware modem limitation rates that depend on the chipset used,” as the
MIN/MAX rates do not relate to indicating throughput achieved using a
particular medium or protocol (App. Br. 12). Further, Appellant argues
there is no inherent reason in Collin for using the MIN/MAX data rates as an
indication of measured network driver performance (id.).
The Examiner points to (1) the MIN/MAX rates of column 13 and
Appeal 2009-010586
Application 10/207,476

12
(2) the “RKMON_SETTINGS_INFO” of column 19 for teaching or
suggesting “accessing data identifying the measured performance of the
network driver and a performance threshold” as recited in claim 27 (Ans. 9).

Issue 2A: Has Appellant shown the Examiner erred in finding the
combination of Collin and Timm teaches or suggests accessing data
identifying measured performance of the network driver?

ADDITIONAL FINDINGS OF FACT
We further find as follows:
Timm Reference
(6) A “rate table defines the rates that a particular layer can attempt
to achieve,” which in general, are “defined by the hardware limitations of
the modem” (col. 22, ll. 63-67).
Definitions
(7) A “driver” is defined as a hardware device that controls or
regulates another device (MICROSOFT COMPUTER DICTIONARY 177 (5th ed.
2002)).
(8) A “modem” is defined as any communications device that acts
as an interface between a computer or terminal and a communications
channel (MICROSOFT COMPUTER DICTIONARY 344 (5th ed. 2002)).

ANALYSIS
Appellant argues Timm does not teach throughput, and Collin does
not inherently disclose accessing data identifying a measured performance of
Appeal 2009-010586
Application 10/207,476

13
the network driver (App. Br. 11-12). As discussed above, with regard to
exemplary claim 1, we find Timm suggests “throughput indication.”
Further, we find the rate table of Timm inherently suggests “accessing
data identifying a measured performance of the network driver.” Timm
discloses a rate table that defines the rates a particular layer can attempt to
achieve (FF 6). We find it would have been obvious to one of ordinary skill
in the art at the time of the invention that an achievable rate corresponds to
data that identifies a performance rate that a component can achieve.
Further, we find one skilled in the art would have recognized that a rate is a
measurement. Thus, we find that an achievable rate corresponds to a
performance measurement or measured performance. Although the
achievable rate is a target performance measurement, it is nevertheless a
performance rate that is expressed as a measurement.
Further, we find one of ordinary skill in the art would have recognized
that a modem is a type of driver, as a modem regulates communications
between a computer or terminal and a communications channel (see FF 7-8).
Accordingly, we find Timm teaches accessing data (i.e., rate table)
identifying a measured performance (i.e., achievable rate) of a driver (i.e.,
modem), as recited in claim 27.

Issue 2B
Appellant contends Collin does not teach changing network driver
parameters based on measured performance of the network driver and
performance threshold, as recited in claim 27 (App. Br. 10).
The Examiner finds Collin teaches this feature (Ans. 9).

Appeal 2009-010586
Application 10/207,476

14
Issue 2B: Has Appellant shown the Examiner erred in finding that
Collin teaches or suggests “based at least on the accessed data identifying
the measured performance of the network driver and the performance
threshold, changing at least one parameter that affects operation of the
network driver?”

ANALYSIS
With respect to Appellant’s argument, Appellant has (1) merely
recited the language of the claim 27; (2) asserted that the limitations are not
taught by Collin; and (3) failed to respond to the specifics of the Examiner’s
rejection (see App. Br. 9-10). Indeed, Appellant argues Collin does not
teach the specific limitation, but then argues the limitations of claims 1, 13,
and 20 without specifically addressing the limitation of claim 27 (id.).
We note that “[a] statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim.” 37 C.F.R. § 41.37(c)(1)(vii) (2008). Moreover, it is our view that
Appellant has failed to comply with the requirements of 37 C.F.R. §
1.111(b) by merely reciting the language of the claim and asserting that such
language is not taught by the reference.
Therefore, we conclude that Appellant has not met the burden of
coming forward with evidence or argument to rebut the Examiner’s legal
conclusion that Collin teaches “based at least on the accessed data
identifying the measured performance of the network driver and the
performance threshold, changing at least one parameter that affects
operation of the network driver,” as in claim 27.

Appeal 2009-010586
Application 10/207,476

15
ISSUE 3
35 U.S.C. § 103(a): claims 1-8 and 13-33
Appellant argues there is no motivation to combine the references
because (1) a “requested rate” in Timm “is not necessarily based on an
indication of throughput” and (2) the “request” in Timm is not responsive to
a throughput indication, or to a measured performance of a network driver,
and as claimed (App. Br. 13). Appellant further contends the request in
Timm occurs in response to a “customer selected data rate” (id.).
The Examiner concludes that it would have been obvious to combine
Collin and Timm because (1) “Collin discloses configuring a modem . . .
based on parameters” and (2) Timm discloses rate negotiation that is based
on requested rates, which may include reconfiguring parameters to provide
the requested rate (Ans. 4). Further, the Examiner finds that the requested
rate of Timm corresponds to the claimed “reference throughput value”, and
not the claimed throughput indication (id. at 20). The Examiner also found
the achievable rate (A) of Timm corresponds to the throughput indication
(id.).

Issue 3A: Has Appellant shown the Examiner erred in finding that one
of ordinary skill in the art would have been motivated to combine Collin and
Timm?
Appeal 2009-010586
Application 10/207,476

16
ADDITIONAL FINDINGS OF FACT
We further find as follows:
Collin Reference
(9) To achieve optimal performance, changes in the modem
parameters can be made without interruption in the data stream (col. 6,
ll. 12-15).

PRINCIPLES OF LAW
Motivation
The court in In re Kahn, 441 F.3d at 988 states
[T]he ‘motivation-suggestion-teaching’ test asks not merely
what the references disclose, but whether a person of ordinary
skill in the art, possessed with the understandings and
knowledge reflected in the prior art, and motivated by the
general problem facing the inventor, would have been led to
make the combination recited in the claims.

Kahn further provides “the teaching, motivation, or suggestion may be
implicit from the prior art as a whole, rather than expressly stated in the
references.” Id. at 987-88.

ANALYSIS
As discussed above with respect to Issue 1A, we find that the
achievable rate of Timm corresponds to the throughput indication, and not a
requested rate. Further, we find Timm discloses rate negotiation, which
involves a throughput rate that is requested, and an available rate that is
offered (FF 4). Because a request was made of the system, we find that it
Appeal 2009-010586
Application 10/207,476

17
would have been obvious to one of ordinary skill in the art to have the
system fulfill the request.
Collin teaches configuring a modem based on parameters (i.e.,
adjusting parameters) (FF 9). Accordingly, we find that a person of ordinary
skill in the art, possessed with the understandings of rate negotiation, would
have been motivated to adjust the parameters of the system (as is performed
in Collin) to achieve the requested throughput rate.
Thus Appellant has failed to persuade us that the Examiner lacked a
motivation to combine Timm and Collin, and Appellant has failed to
persuade use that the Examiner erred in finding that the combination of
Timm and Collin is obvious.

ISSUE 4
35 U.S.C. § 103(a): claims 1-8 and 13-33
Appellant also argues that no reasonable expectation of success arises
if the elements of Collin and Timm are combined (App. Br. 14). Appellant
contends that both Collin and Timm fail to disclose “an adjustment module
to ‘adjust a parameter value associated with the driver module in response to
the monitoring module providing an indication that the value associated with
the throughput indication corresponding reference throughput value’” since
neither reference is directed toward responding to a value associated with a
throughput indication or measured performance (id. at 13).
The Examiner finds that Timm discloses that “the rate negotiation
method accounts for time varying channel capacity and conditions” (Ans.
20). Further, the Examiner finds that in order to maximize throughput or
provide the requested rates, the channel is monitored and appropriate actions
Appeal 2009-010586
Application 10/207,476

18
are taken (id.). The Examiner also finds that “Timm specifically teaches
responding to a measurement of throughput or performance” (id.).

Issue 4: Has Appellant shown that the Examiner erred by not
showing that there was a reasonable expectation of success for the
combination of Collin and Timm?

PRINCIPLES OF LAW
Reasonable Expectation of Success
To have a reasonable expectation of success, for purposes of a claim
of obviousness, one must be motivated to do more than merely to vary all
parameters or try each of numerous possible choices until one possibly
arrived at a successful result, where the prior art gave either no indication of
which parameters were critical or no direction as to which of many possible
choices is likely to be successful. Medichem, S.A. v. Rolabo, S.L., 437 F.3d
1157, 1165 (Fed. Cir. 2006) (citing In re O’Farrell, 853 F.2d 894, 903 (Fed.
Cir. 1988).
In establishing a prima facie case of obviousness, the expectation of
success in making invention need only be reasonable, not absolute. Merck
& Co. v. Biocraft Labs., 874 F.2d 804, 809 (citing In re O'Farrell, 853 at
903).

ANALYSIS
As discussed above, with regard to Issues 1A and 1B, we find Timm
teaches or suggests performing an adjustment in response to a throughput
Appeal 2009-010586
Application 10/207,476

19
indication, as an adjustment is based on an available rate (i.e., throughput
indication).
Further, we find that there was a reasonable expectation of success for
the combination of Timm and Collin. As discussed above with respect to
Issue 3, we find that a person of ordinary skill in the art, possessed with the
understandings of rate negotiation, would have been motivated to adjust the
parameters of the system (as is performed in Collin) to achieve the requested
throughput rate. Further, we find that the prior art (i.e., Timm) is clear as to
what parameters need to be adjusted (i.e., the throughput parameter), as it is
regarding a throughput for which the request is made.
Thus, Appellant has failed to persuade us that the combination of
Timm and Collin would have produced unsuccessful results. Accordingly,
Appellant has failed to persuade us that because the combination of Timm
and Collin would not have had a reasonable expectation of success, the
Examiner erred in his conclusion that the combination of Timm and Collin is
obvious.

ISSUE 5
35 U.S.C. § 103(a): claims 9-12
Appellant argued claim 9 for substantially the same reasons argued
with respect to representative claim 1, as the monitoring and adjustment
modules of claim 1 are also recited in claim 9 (App. Br. 15-16).

Issue 5: Has Appellant shown the Examiner erred in finding the
combination of Collin, Timm and Motoyama renders claim 9 obvious?

Appeal 2009-010586
Application 10/207,476

20
ANALYSIS
Since Appellant argued independent claim 9 on substantially the same
basis as representative claim 1, we likewise sustain the Examiner’s rejection
of independent claim 9 as being obvious over Collin, Timm and Motoyama
on the basis of the arguments set forth above for claim 1. Since claims 10-
12 depend from independent claim 9 and claims 10-12 were not argued
separately, claims 10-12 are also found to be obvious over Collin, Timm and
Motoyama.

CONCLUSION
Appellant has not shown the Examiner erred in finding Timm teaches
or suggests a throughput indication. Additionally, Appellant has not shown
the Examiner erred in finding the combination of Collin and Timm teaches
or suggest adjusting parameters in response to a throughput indication.
Further, Appellant has not shown the Examiner erred in finding that there is
motivation to combine Collin and Timm. Appellant also has not shown that
the Examiner erred in finding that there was a reasonable expectation of
success for the combination of Collin and Timm. Thus Appellant has not
shown the Examiner erred in rejecting representative independent claim 1 on
appeal. As claims 2-8 and 13-33 were argued on the same basis as
independent claim 1, we find that Appellant has not shown that the
Examiner erred in rejecting claims 2-8 and 13-33 under 35 U.S.C. § 103(a)
for obviousness over Collin and Timm.
Appellant has also not shown the Examiner erred in finding the
combination of Collin and Timm teaches or suggests accessing data
identifying measured performance of the network driver. Further, Appellant
Appeal 2009-010586
Application 10/207,476

21
has not shown the Examiner erred in finding that Collin teaches or suggests
responding to a measured performance. Thus, we find that Appellant has
not shown the Examiner erred in finding claim 27 is obvious over Collin and
Timm. Since claims 28-33 depend from representative and independent
claim 27, and claims 28-33 were not argued separately, claims 28-33 are
also found to be obvious over Collin and Timm. Accordingly, Appellant has
not shown the Examiner erred in rejecting claims 27-33 under 35 U.S.C.
§ 103(a) for obviousness over Collin and Timm.
Finally, Appellant has not shown that the Examiner erred in finding
the combination of Collin, Timm and Motoyama renders claim 9 obvious.
Thus, Appellant has not shown the Examiner erred in finding claim 9 is
obvious over the combination of Collin, Timm and Motoyama. Since claims
10-12 depend from representative and independent claim 9, and claims 10-
12 were not argued separately, claims 10-12 are also found to be obvious
over Collin, Tim and Motoyama.

DECISION
The Examiner’s rejection of claims 1-8 and 13-33 under 35 U.S.C.
§ 103(a) as being obvious over Collin and Timm is affirmed.
The Examiner’s rejection of claims 9-12 under 35 U.S.C. § 103(a) as
being obvious over Collin, Timm and Motoyama is affirmed.

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) (2009).

AFFIRMED
Appeal 2009-010586
Application 10/207,476

22
nhl

SCHWEGMAN, LUNDBERG & WOESSNER, P.A.
P.O. BOX 2938
MINNEAPOLIS, MN 55402