Appeal No. 1999-0353
Application No. 08/368,291
of the statement of rejection as evidence of such storage in a data pump. Since these
references are not part of the rejection, we cannot consider them. In re Hoch, 428 F.2d
1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970). Reliance on Herh, alone, does
not provide sufficient detail of the data pump in order to make a determination as to
whether it, indeed, contains a storage area for any packet information which might be
sent from a remote computer. While it appears from Herh’s Figure 1 that any
information coming from the telephone line and some information coming from the DTE
interface goes through the data pump, there is not enough disclosure about data pump 44
within the disclosure of Herh to determine whether there is any type of storage therein
that would qualify as the claimed “temporary storage.” We note that the instant
specification describes a data pump [page 5] as performing functions such as
“modulation, demodulation and echo cancellation” but we will not speculate regarding
the storage capabilities of Herh’s data pump 44. Accordingly, since we cannot discern,
from Herh’s disclosure, both a temporary and permanent storage, as required by instant
claim 7, we will not sustain the rejection of claim 7 under 35 U.S.C. 103 based on Herh,
Izumi and Tjahjadi. Neither Izumi nor Tjahjadi provides for the deficiency of Herh.
With regard to claims 8 and 9, these claims will stand with claim 7 since they
depend therefrom.
We note our earlier decisio n of February 24, 1999 in parent application Serial No.
08/087,164. While we reversed the examiner in that case, but sustain the examiner in the
instant case with regard to claim 6, the claimed subject matter in that case, and the
references applied therein, were different from the claims and references in the instant
case. While the Herh reference is common to both cases and we found, in the earlier
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