Appeal No. 09/349,477 Page 8
Application No. 2003-1923
(Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992)). "'A prima facie case of obviousness is established when the
teachings from the prior art itself would . . . have suggested the claimed subject matter
to a person of ordinary skill in the art.'" In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529,
1531 (Fed. Cir. 1993) (quoting In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143,
147 (CCPA 1976)).
Here, the paragraph of Whitehead cited by the examiner discloses that a
"[c]ontroller 13 maintains information regarding all packet input queues for all base
stations 11 and terminals 12. According to the invention, controller 13 keeps a token
queue corresponding to each packet queue in the network." Col. 7, ll. 43-46. "[E]ach
token in token queue 40 may contain information regarding, such as, for example, time-
of-arrival, service deadline, the length of the packet, and other information that is useful
for scheduling the corresponding packet." Id. at ll. 51-54. Although the length of a
packet is represented by data, the examiner does not allege, let alone show, that a
packet contains such data. To the contrary, the aforementioned paragraph explains
that such data are contained in a token in a token queue.
The examiner does not allege, let alone show, that the addition of Leung cures
the aforementioned deficiency of Smith and Whitehead. Absent a teaching or
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