Appeal No. 2003-0661
Application 09/032,622
arriving (column 19, lines 37-43). Therefore, no motivation
exists to modify unit 22 to add this feature. Further, Appellant
argues with respect to claim 21 and we deem it equally applicable
to claim 34, Soumiya teach calculation of “the allowed
transmission rate based on Ba(n)=B(n)/Nvc(n).” (brief page 7,
third full paragraph) We note that, Nvc(n) = the number of
active virtual connection (VCs) in a period during which a
predetermined number of cells arrive and B(n) = the Band of the
output channel (Soumiya at column 19, lines 40-47). Soumiya does
not show unit 22 calculating “an actual transmission rate of the
cells”. The Examiner’s response [answer, page 5] states “it is
well known [in] the art that the transmission rate can be
calculated by dividing [the] total number of cells […] by the
time interval”, “Soumiya discloses counting the number of arrived
cells […] and designating the observation period (time
interval)”, and “[t]hus, the transmission rate can be calculated
by dividing”. Even if we accept the Examiner’s three points as
fact, the Examiner does not then explain why based on these facts
one of ordinary skill in the art would then be motivated to
modify the device of Soumiya to arrive at Appellant’s invention.
Therefore, Appellant’s arguments are persuasive. We will not
sustain the Examiner’s rejection under 35 U.S.C. § 103.
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