Appeal No. 95-3346
Application 07/953,320
We find appellant’s analysis of the relevant portion of Lee to be reasonable and factual.
Whereas random selection has not been shown to be taught by Lee or the other prior art, and further in
view of the fact that the examiner does not contend random selection would have been an obvious
modification of the prior art, we hold that the examiner has not made a prima facie showing of
obviousness of claims 7-9. In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1783-1784 (Fed.
Cir. 1992).
The Rejection under 35 U.S.C. § 103
Claims 11-27
In setting forth the rejections of these claims, the examiner has taken the position that
Nazarenko teaches transmitting control messages independently of information packets. The examiner
relies on the disclosure of Nazarenko at column 26, lines 10-45, in support of his position.
In opposition to the rejection of claims 11-27, appellant argues, inter alia, that although the
two types of messages taught by the reference and relied upon by the examiner, “control channel
messages” and “working channel messages”, are transmitted independently, they are not analogous to
the control messages and information packets of the claims. At page 4 of the reply
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