Appeal No. 2001-0910
Application No. 08/903,756
through a string of routers, there is no determination that
communication is to occur through source route bridges and that
the source route bridges will be bypassed on the establishment of
a direct network connection as required by Appellants’ claims.
We also agree with Appellants that in the only place where
communication through a bridge is mentioned in DeSimone, i.e.,
the Figure 5 embodiment, communication always takes place through
the bridge, in contrast to the claimed source route bridge
bypassing feature.
We also recognize that the Examiner’s comments in the
“Response to Arguments” portion of the Answer at page 29, line 1
suggest the possible reliance by the Examiner on the supposed
equivalence of source route bridges and routers. We find the
record to be totally devoid of any evidence to support such an
assertion.2 The Examiner must not only make requisite findings,
2 As additional support for the stated rejection, the Examiner cites (Answer,
page 24) excerpts from the Halsall text book titled “Data Communications,
Computer Networks and Open Systems.” To whatever extent this reference may be
applicable to the instant claimed invention, we will not consider it because
it is not part of the statement of the rejection and may not be properly
relied upon. “Where a reference is relied on to support a rejection whether
or not in a ‘minor capacity,’ there would appear to be no excuse for not
positively including the reference in the statement of the rejection.” In re
Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970). See also Ex
parte Raske, 28 USPQ2d 1304, 1305 (Bd. Pat. App. & Int. 1993). We would point
out, however, that our cursory review of Halsall reveals that, in contrast to
any suggestion of equivalence of bridges and routers by the Examiner, this
reference clearly sets forth the art recognized distinction between bridged
LANs and router-based LANs.
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