Appeal No. 2004-0852
Application No. 09/354,651 Page 9
examiner (answer, page 11) that in Rekhter, the end points
exchange addresses and establish a session ID for the connection.
We find the examiner's arguments to the contrary to be
speculation, unsupported by evidence in the record. The examiner
may not resort to speculation or unfounded assumptions to supply
deficiencies in establishing a factual basis. See In re Warner,
379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Accordingly, we agree with appellants (answer, page 6) that
Rekhter is not directed to the establishment of a communications
session between end points where the end points inform each other
of their respective IP addresses and share a session identifier.
From all of the above, we find that the examiner has failed
to establish a prima facie case of anticipation of claim 1.
Accordingly, the rejection of claim 1, and claims 2-5, dependent
therefrom, is reversed. As independent claim 8 contains similar
language, the rejection of claim 8 and claims 9-11, dependent
therefrom, is reversed.
We turn next to the rejection of claim 7 under 35 U.S.C.
§ 103(a) as being unpatentable over Rekhter in view of Sriram.
We reverse the rejection of claim 7 because Sriram does not make
up for the deficiencies of Rekhter.
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