Appeal No. 2004-0505
Application No. 09/338,812
776 F.2d 281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985), cert.
denied, 475 U.S. 1017 (1986); ACS Hospital Systems, Inc. v.
Montefiore Hospital, 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.
Cir. 1984). These showings by the Examiner are an essential part
of complying with the burden of presenting a prima facie case of
obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
With respect to the Examiner’s 35 U.S.C. § 103(a) rejection of
appealed independent claims 1, 7, and 13, Appellants assert that
the Examiner has failed to establish a prima facie case of
obviousness since all of the claimed limitations are not taught or
suggested by any of the applied prior art references. In
particular, Appellants contend (Brief, page 7; Reply Brief, page
12) that none of the applied prior art references teaches or
suggests adjusting the communication rate (CIR) of a communications
network to a specific value, a feature appearing in each of the
appealed independent claims. Appellants conclude that, with this
asserted deficiency in the applied references, the references even
if combined would not result in the invention as claimed.
After reviewing the arguments of record from Appellants and
the Examiner, we are in general agreement with Appellants’ position
as stated in the Briefs. We find nothing in either of the applied
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