Appeal No. 2000-1561
Application No. 08/768,922
determination of whether a data packet “to be sent” has
previously been sent as set forth in representative claim 4.
After careful review of the Kirchner reference in light of
the arguments of record, however, we are in agreement with the
Examiner’s position as stated in the Answer. Our interpretation
of the disclosure of Kirchner coincides with that of the
Examiner, i.e., Kirchner’s comparison of sequence numbers to
determine whether a packet needs to be retransmitted meets all of
the requirements of appealed claim 4. As indicated in the
explanation of Kirchner’s example beginning at column 9, line 24,
when an expected sequence number comparison match between
transmitted and return acknowledgment messages does not occur
within a timeout period, the message is retransmitted. In our
view, this retransmitted message corresponds to a message “to be
sent” as broadly set forth in Appellant’s claim 4. In other
words, there is nothing in the claim language which precludes a
message “to be sent” from being a message “to be resent.”
As to Appellant’s further argument (Brief, page 9) that,
unlike the claimed invention, Kirchner does not provide a record
of successfully transmitted packets, we find such argument to not
be commensurate with the scope of the claims. In our view, this
argument of Appellant improperly attempts to narrow the scope of
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