Appeal No. 2004-1613
Application No. 09/686,024
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993). To reach a conclusion of
obviousness under § 103, the examiner must produce a factual
basis supported by teaching in a prior art reference or shown to
be common knowledge of unquestionable demonstration. Such
evidence is required in order to establish a prima facie case.
In re Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88
(Fed. Cir. 1984). The Examiner must not only identify the
elements in the prior art, but also show “some objective teaching
in the prior art or that knowledge generally available to one of
ordinary skill in the art would lead the individual to combine
the relevant teachings of the references.” In re Fine, 837 F.2d
1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
Upon a review of Müller, we remain unpersuaded by the
Examiner’s characterization of the disclosed access restriction
as the claimed restriction of using a constrained protocol.
Müller, in fact, provides a period of access interval to each
group of the mobile stations such that only that group can access
the base station (col. 4, lines 2-19). On the other hand, what
the Examiner characterizes in Criss as the claimed restriction to
using a constrained protocol is merely a determination by the
host of what software upgrade the mobile stations need (paragraph
4
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