Appeal No. 2001-0848
Application 09/144,414
The examiner responds that the standard TCP/IP protocol
teaches that an adjustment in the size of the TCP packet must
naturally result in adjustment in the size of the IP packet,
citing Ranaganthan (U. S. Patent No. 5,931,961). The examiner
responds that providing TCP/IP in Mahany’s system would
inherently result in adjusting the packet sizes of IP packets
(messages without acknowledgment) by monitoring the reliability
statistics of the TCP packets (messages with acknowledgment).
The examiner also asserts that appellant has failed to timely
challenge the examiner’s taking of Official Notice [answer, pages
10-13].
We will not sustain the examiner’s rejection of
independent claims 1 and 8 because the examiner has failed to
establish a prima facie case of obviousness. Initially, we note
that we will not consider the teachings of Ranaganthan because it
was not used in the statement of the rejection. We also note
that the examiner’s rejection improperly relies on the examiner’s
findings of what is deemed to be inherent in the prior art
teachings and on the examiner’s taking of Official Notice as to
certain facts. First, inherency will not support a rejection
under 35 U.S.C. § 103 when these findings are challenged by
appellant. Second, appellant is not precluded from arguing the
-7-
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