Appeal No. 1996-3273
Application 08/127,932
Since Blasbalg neither monitors the availability of a
transmission queue in the sending station nor transmits data
based on this availability, Blasbalg does not fully meet the
invention as set forth in
claims 1-6. Therefore, we do not sustain the rejection of
claims 1-6 under 35 U.S.C. § 102(b).
We now consider the rejection of claims 1-6 under 35
U.S.C. § 103 as being unpatentable over the admitted prior art
set forth in appellants’ specification. 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
obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d
1596, 1598 (Fed. Cir. 1988). In so doing, the examiner is
expected to make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467
(1966), and to provide a reason why one having ordinary skill
in the pertinent art would have been
led to modify the prior art or to combine prior art references
to
arrive at the claimed invention. Such reason must stem from
some teaching, suggestion or implication in the prior art as a
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