Appeal No. 2001-2578
Application No. 08/977,547
negotiations in the physical layer may be possible or applied to
the communications at the application layer of Smith.
We note again that a rejection under 35 U.S.C. §103 must be
based on whether there is teaching, motivation, or suggestion to
select and combine the references based on objective evidence of
record. Therefore, the examiner must identify a reason,
suggestion, or motivation which would have led an inventor to
combine those references. Pro-Mold & Tool Co. V. Great Lakes
Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1629, (Fed.
Cir. 1996). Additionally, “the Board must not only assure that
the requisite findings are made, based on evidence of record, but
must also explain the reasoning by which the findings are deemed
to support the agency’s conclusion.” In re Lee, 277 F.3d 1338,
1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002).
Although we acknowledge that Klotzbach describes some form
of agreement related to transmission protocol, it neither
performs the negotiation at the application layer nor suggests
applying the protocol negotiations to connections at the
application layer. Therefore, contrary to the Examiner’s
arguments, we find no teaching or suggestion in the combination
of Smith and Klotzbach in support of the obviousness of the
claimed establishing agreement for negotiating device protocol
options at the application layer. The Examiner has further
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