Appeal 2007-1063
Application 09/881,594
1347, 51 USPQ2d 1943, 1946 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475,
1478-79, 31 USPQ2d 1671, 1673 (Fed. Cir. 1994).
In rejecting claims under 35 U.S.C. § 103, the Examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). The
Examiner can satisfy this burden by showing some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness. KSR Int’l. v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d
1385, 1396 (2007) (citing In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329,
1336 (Fed. Cir. 2006)). Only if this initial burden is met does the burden of
coming forward with evidence or argument shift to the Appellant. Piasecki,
745 F.2d at 1472, 223 USPQ at 788. Thus, the Examiner must not only
assure that the requisite findings are made, based on evidence of record, but
must also explain the reasoning by which the findings are deemed to support
the Examiner’s conclusion.
ANALYSIS
Rejection under 35 U.S.C. § 102(e)
Appellant asserts that Thomas fails to anticipate Appellant’s claimed
invention, because Thomas does not teach “repeatedly sending keep-alive
messages to maintain the path through the firewall and network address
translator.” Appellant asserts that because the ordinary meaning of
“maintain” is “to keep in an existing state” (Br. 4:10, citing Merriam-
Webster Online Dictionary), Thomas cannot anticipate the claimed
invention, because Thomas teaches repeatedly initiating communication
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