Appeal No. 2002-1513
Application No. 08/829,587
Hluchyj’s system is operating in the slow, reliable mode, the
buffer is collecting “a defined number of packets” in that it is
monitoring when it has stored less than a threshold number for
switching to the faster, unreliable mode of transmitting data.
That number is reference pointer 42 of Figure 4 or,
alternatively, the reference rate or reference number taught at
column 7, lines 50-57.
Claim 5
We will sustain the rejection of claim 5. Claim 5, which
depends from independent claim 1, is not separately argued by
appellant, indicating how it defines appellant’s invention over
the prior art. Accordingly, claim 5 falls with claim 1. In re
Nielson, supra.
Claims 4, 7 and 12
With respect to claim 4, it is argued by appellant that
Hluchyj does not teach issuing of a “go-to-live reliable mode”
control message.
This argument is not persuasive and we will sustain the
rejection of claim 4. Appellant’s argument is not commensurate
in scope with the claim. The claim recites “…issuing ‘go to
reliable mode’ control message”. This language is met by the
reference when flags are present in bits RCIB and FCIB as a
-6–
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