Appeal No. 2006-0697
Reexamination 90/006,402
The meaning of datagram service as established by the examiner is broad and does not
require that the routers at each level be “intelligent” such that they all would read the destination
address information from the data packet being transmitted and use it to determine subsequent
routing. It is merely the examiner’s own opinion, unsupported by evidence, that each level of
routers must be “intelligent” in order to provide a datagram service. Of the three levels of
intermediate networks Level-0, Level-1, and Level-2, in Chan, not all three must be “intelligent”
for routing a datagram for the result to be consistent with providing a datagram service. For
instance, the examiner has not explained why it is not possible that Level-0 networks can
continue to be broadcast networks which share everything within a local area network without
regard to destination and that Level-1 and Level-2 networks will provide all the intelligence that
is necessary. The examiner has skipped a step in the analysis and arrived without sufficient basis
at the conclusion that there is only one way Chan’s disclosed network can be used to provide or
be adapted to support a datagram service.
The deficiency is the same even considering, as noted by the examiner, that independent
claims 1 and 10 recite only that the various intelligent routers are “capable of” performing
certain functions. Although it is true that where the structure is the same between a claimed
apparatus and something preexisting in the prior art, a different intended use for the invention
does not distinguish it from the prior art, the examiner has not shown that Chan discloses the
identical physical structure as that claimed by the appellant. Insofar as each intelligent router
claimed by the appellant requires corresponding programming within an associated data
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