Appeal No. 2004-0070
Application No. 10/047,529
Since appellants request that the claims be grouped together (Brief at 4), we select
claim 1 as representative. See 37 CFR § 1.192(c)(7).
Appellants argue that Feiner teaches away from the invention with respect to the
telephone line, as recited in claim 1, “forming a continuous electrically conductive path
without intermediate components between the first point and a second point.”
According to appellants, Feiner addresses the problem of establishing a communication
session over a path having any number of unknown intermediate “facilities” carrying the
communications, which may vary over time. In appellants’ view, Feiner specifically
teaches away from testing of “pre-assigned or static communications paths,” referring to
material in columns 1 and 6 of Feiner. (Brief at 5.)
Feiner relates to a technique for determining the type of facility that will be
transporting a data communication. Col. 1, ll. 9-12. In the Background of the Invention
section (col. 1), Feiner notes that various types of facilities are used for transporting
data communications, which may include metallic, analog carrier, and digital carrier
facilities. The data transport connection between network end-points may be a single
facility or may be a combination of several facilities. In the case of a combination, the
maximum data rate allocated to a customer is limited by the data rate of the facility
having the smallest maximum data rate. A facility, or a combination of facilities, or a
subset of facilities types, can be preassigned to transport data so that the facilities do
not vary over time. However, such preassignment restricts network facility
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