Appeal No. 2001-1125
Application No. 08/721,184
Claims 1, 27, 62, and 63 require, in pertinent part, that
the interface device "determines the testing mode to be performed
on the signal based on the commands and preselected criteria"
(underlining added for emphasis). Appellants argue (Brief, pages
6-8) that in Fuller the testing mode is set with commands from a
technician, not with preselected criteria, and that the examiner
has provided no motivation for using preselected criteria for
determining the testing mode. The examiner admits (Answer, page
4) that Fuller does not disclose that the interface device
determines the testing mode based on preselected criteria, but
asserts that the claim limitation would have been obvious because
it is "well know [sic] in the art to select a criteria before
testing begins."
We agree with appellants. Fuller discloses (column 2, lines
35-38) that "[t]he apparatus can obtain convenient access to a
relevant part of the communication traffic flowing through a
network node in response to a request from a network subscriber."
Further, Fuller discloses (column 5, lines 29-31) that "user
interface 36 operates in response to appropriate commands
generated by a user via a peripheral device." Nowhere does
Fuller suggest any criteria for selecting the testing mode beyond
a user's request. Although it is common to select criteria
before beginning a test, as asserted by the examiner, that
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