Appeal No. 2004-0070
Application No. 10/047,529
rather than addressing the examiner’s findings in support of the combinations2 -- consist
of the bare assertions that the examiner has failed to show any teaching, suggestion, or
reason to combine the references.
In any event, we will address the subject matter of representative claims. For
claim 3, we need go no farther than the four corners of the Feiner reference. Feiner
teaches determining the maximum rate at which data can be reliably transmitted (e.g.,
col. 5, ll. 4-9), and whether the connection is all digital (e.g., col. 4, ll. 50-64). The
capacities for data rate and all digital communication are “physical characteristics,” as
broadly claimed, of the telephone line. With respect to representative claim 8, Feiner
appears to necessarily include a display, at least to the extent of an LED. In any event,
the rejection further relies on Bliven and Soderberg, with the references suggesting
visual and/or audible indicators as to network status. Representative claim 10 does not
require an output device or display, but the step of “indicating” whether the telephone
line can support the communication. Whether or not Feiner is considered as
necessarily including a visible indicator, Feiner expressly describes indicating whether
the data link can support the desired communication (e.g., col. 5, ll. 51-54).3
2 The presence or absence of a motivation to combine references in an obviousness
determ ination is a pure qu estion o f fact. In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1776
(Fed. Cir. 2000).
3 Appe llants hav e not arg ued that F einer fails to sugge st applic ation to “xD SL” co mmu nication .
Moreover, Feiner expressly describes that the invention may be implemented in communications
applications different from the disclosed embodiments. Col. 6, ll. 54-55.
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