Appeal No. 2002-2081
Application 09/304,188
Shimony controls the data rate of at least one end user device as
claimed. As noted by appellants, they have presented
considerable analysis as to how and why the data rate control in
Shimony occurs in the ATM edge device as opposed to the end user
device. The ATM edge device is part of the communication network
and does not constitute an end user device. The examiner has
failed to rebut appellants’ arguments that Shimony does not
control the data rate of an end user device with any meaningful
analysis. The examiner has not addressed the argued differences
between the ATM edge device and an end user device nor explained
why he believes that Shimony does, in fact, control the data rate
at the end user device. On the record before us, appellants have
presented a persuasive case as to why the claimed invention is
not anticipated by Shimony, and the examiner has failed to rebut
appellants’ case with any meaningful analysis. It was incumbent
upon the examiner to specifically point out the errors in
appellants’ arguments.
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