Ex Parte Reinold et al - Page 6


                Appeal 2006-0342                                                                                 
                Application 09/944,893                                                                           
                concludes that Pogue’s intelligent devices meet the definition of an active                      
                network as defined in the Specification (9: 16-21) (Answer 7-8).                                 
                       In the Reply Brief, Appellants point out the Examiner states that                         
                Pogue does not disclose encrypting data or an active network (i.e., with                         
                respect to new grounds of rejection, Pogue in view of Tennenhouse,                               
                discussed infra) (see Answer 6, ¶ 2, first line, emphasis added).  Appellants                    
                restate their argument that the Examiner has impermissibly relied upon                           
                hindsight in formulating the rejection (Reply Br. 2-4).                                          
                       At the outset, we do not agree with the Examiner’s statement (made in                     
                applying the new grounds of rejection) that Pogue does not disclose an                           
                active network (see Answer 6, ¶ 2).  We note the Examiner’s statement                            
                directly contravenes the earlier position the Examiner took in rejecting                         
                representative claim 1 as being unpatentable over Pogue in view of Daniels                       
                (see Answer 3).  We find the Examiner was correct in the first instance.  In                     
                particular, we agree with the Examiner’s first position that Pogue’s                             
                disclosure of “intelligent nodes” meets the language of the claim that recites                   
                an “active network” (claim 1).  We note Pogue discloses the capabilities of                      
                “intelligent nodes” as follows:                                                                  
                       Intelligent nodes generally have some level of microprocessing                            
                       power that can be made available for controlling some aspect of                           
                       the node's interaction with the network data bus, while a dumb                            
                       node would generally have either no processing power or no                                
                       available processing power. Preferably, the interface circuit can                         
                       be configured to recognize whether its associated node is                                 
                       intelligent or dumb, transfer some portion of the data bus                                
                       control functions to the node if the node is intelligent, and                             
                       maintain substantially all of the data bus controls within the                            
                       interface unit (or some other portion of the network data bus) if                         
                       the node is determined to be dumb.                                                        

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