Appeal 2007-1114
Application 10/314,687
when the switching node would be going under a maintenance procedure.
While we agree with Appellants that this limitation is not expressly taught
by Yoo, we still find that it is suggested by Yoo under the Examiner’s
reasonable claim interpretation. Additionally, we find that the rejection
could have been formulated under anticipation. Therefore, Appellants'
argument is not persuasive. We find no need for an affidavit by the
Examiner to evidence what is taught or fairly suggested by Yoo.
Therefore, Appellants' argument is not persuasive, and we will sustain the
rejection of dependent claim 22.
With respect to dependent claim 23, Appellants rely upon the
arguments advanced with respect to dependent claim 22 since dependent
claim 23 depends from dependent claim 22 (Br. 15-16). We cannot agree
with Appellants and find that dependent claim 23 depends from independent
claim 21. We find that the Examiner has set forth the statement of the
rejection at pages 5-6 of the Answer, and Appellants have not shown any
error therein. Therefore, Appellants' argument is not persuasive, and we will
sustain the rejection of dependent claim 23.
With respect to dependent claims 24 and 25, Appellants maintain that
the Examiner is in error to rely upon inherency to enable and disable the
bypassing of a switching node (Br. 16). We disagree with Appellants and
conclude that the table 322 of Yoo would include bypass information in the
signal therefrom if the table was updated to route around or through certain
switching nodes as the Examiner has interpreted the claim language.
Therefore, Appellants' argument is not persuasive, and we will sustain the
rejection of dependent claims 24 and 25.
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