Appeal No. 2003-1240
Application No. 09/304,964
We find that none of the FIFO’s described by Wu necessarily corresponds to any
particular receive port. Wu refers to a “cell source” as any hardware that produces cells
for writing into an outgoing bitstream. Col. 3, ll. 22-40. Wu is directed to determining
priority according to the type of source (col. 5, ll. 18-22; col. 3, l. 62 - col. 4, l. 33), such
as “best effort” sources and variable bit rate sources (having mean and peak rates).
The source, rather than traffic on a particular physical port, determines how the cells
are prioritized and scheduled for transmission. The source may connect through virtual
paths and virtual channels (col. 1, l. 61 - col. 2, l. 41), which need not map one-to-one
with corresponding physical ports.
Since independent claim 8 contains similar limitations to those of claim 2 that
have not been shown as expressly or inherently described by Wu, we do not sustain the
rejection of claims 2 through 11. Further, we reverse, pro forma, the rejection of claims
13 through 18, since we are unable to ascertain the scope of base claim 13 for any
meaningful comparison with the prior art. The reversal of claims 13 through 18 is for
the reason that rejections of claims over prior art should not be based on speculation
and assumptions as to the scope of the claims. See In re Steele, 305 F.2d 859, 862,
134 USPQ 292, 295 (CCPA 1962).
New ground of rejection
We enter the following new ground of rejection against the claims in accordance
with 37 CFR § 41.50(b): Claims 13-18 are rejected under 35 U.S.C. § 112, second
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