Appeal No. 2001-1851
Application No. 08/815,363
In view of the express teachings of Sistanizadeh, we believe there would need to
be a strong showing from the prior art of some particular reason to modify the system of
the reference such that prima facie obviousness of the subject matter as a whole of
instant claim 1 is established. However, the reasons for combining the references
offered by the rejection (e.g., Answer at 5-6) appear to be based on speculation, rather
than arising from the prior art. For example, appellants submit (Brief at 8) that existing
telephone service could have been used for dial-up access, resulting in no need for
combining the features of the references as proposed by the rejection. We are unable
to point to concrete evidence in the record in support of the examiner’s findings
underlying the proffered combination. See In re Zurko, 258 F.3d 1379, 1386, 59
USPQ2d 1693, 1697 (Fed. Cir. 2001) (in a determination of unpatentability “the Board
must point to some concrete evidence in the record in support of...[the]...findings”).
We thus consider appellants’ arguments to be persuasive with respect to the
requirements of instant claim 1. We do not sustain the section 103 rejection of the
claim.
Appellants further submit that “[e]ach of independent claims 1, 16, 25, and 27”
requires features including “the access server being configured for nondedicated
switchable connection to any of the plurality of premises terminals in response to a
dialed call therefrom.” (Brief at 9.) Appellants do not, however, point to language in
claims 16, 25, or 27 deemed to correspond to the arguments.
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