Appeal No. 2001-0848
Application 09/144,414
taking of Official Notice in the appeal brief as asserted by the
examiner. Since appellant has argued the taking of Official
Notice while the case was still before the examiner, we find that
this argument is timely made.
Just as important, however, is the fact that even if all
the examiner’s findings were accepted, there is still no prima
facie case of obviousness. The standard TCP/IP protocol only
establishes that it was known to send messages in which a
response was expected as well as messages in which no response
was expected. Even if one accepts that this finding is correct,
there is still no suggestion within the applied prior art that
statistics obtained from messages sent when a response is
expected would be used to estimate the required delivery
parameters for sending messages in which no response is expected
at a target transmission reliability. The examiner has provided
no motivation, and we have found none, as to why the artisan
would have been motivated to modify the system of Mahany as
proposed by the examiner except to recreate the claimed invention
in hindsight.
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