Appeal No. 95-2571
Application 08/245,053
event, the cited passage from Brightwell states that “the
system may switch to an alternative network to retransmit the
messages.” Column 6, lines 19-22. That is the opposite of
the claimed invention, in which an alternative network is used
to exchange only status information and the system then
switches back to the original route to resume message
transmission.
The mere fact that the prior art may be modified in
the manner suggested by the examiner does not make the
modification obvious unless the prior art suggested the
desirability of the
modification. In re Fritch, 972 F.2d 1260, 1266 n.14, 23
USPQ2d 1780, 1783-84 n.14 (Fed. Cir. 1992). In the present
case, the examiner does not identify how the prior art
suggested the desirability of modifying Brightwell to use an
alternative path to exchange only status information about the
original path and then switch back to the original route to
resume message transmission as claimed.
The deficiency in the examiner’s reliance on
Brightwell is not remedied by the examiner’s application of
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