Appeal No. 2004-0070
Application No. 10/047,529
management and may result in increased cost to the customer. Feiner recognizes the
need for a technique for permitting greater data rates in a manner that would be
“transparent” to an unrestricted network facility management scheme, and not likely to
increase cost to the customer.
Feiner further describes a “prior art” arrangement (Fig. 1) that includes private
branch exchanges (PBX) 101 and 102, connected via a facility connection 103. Facility
connection 103 is essentially the same as that used in the system of Feiner (Fig. 2; col.
3. l. 1 et seq.). Connection 103 may include one or a combination of metallic, analog
carrier or digital carrier facilities. The media used by the facilities may include wire, air,
optical fiber, etc. For “purposes of discussion,” Feiner assumes that facility 103 forms
part of the PSTN (public switched telephone network), or an equivalent private network,
that can vary over time. Col. 2, ll. 25-43.
“A reference may be said to teach away when a person of ordinary skill, upon
[examining] the reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was taken by the
applicant.” Para-Ordnance Mfg. v. SGS Importers Int’l, 73 F.3d 1085, 1090, 37
USPQ2d 1237, 1241 (Fed. Cir. 1995) (quoting In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1131 (Fed. Cir. 1994)).
Feiner teaches that the system of the invention is suited for use in facilities that
can vary over time. However, we find no warning in the reference, directed to the
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