Appeal No. 2006-0697
Reexamination 90/006,402
processor, the examiner has not shown that such programming necessarily exists in each of
Chan’s Level-0, Level-1 and Level-2 networks. Two differently programmed processors are
ordinarily not considered to have identical structure, especially if they accomplish different
results. The examiner has not pointed to where the same programming exists in Chan and is
capable of being run whenever there is desire to do so.
For the foregoing reasons, the examiner has not properly identified all the differences
between the appellant’s claimed invention and Chan’s disclosure. Also, the Tanenbaum
reference, as applied by the examiner, does not make up for the deficiencies of Chan.
Accordingly, the rejection of claims 1-7, 10-13, and 16-17 under 35 U.S.C. § 103 as
unpatentable over Chan and Tanenbaum is improper and cannot be sustained.
B. The rejection of claims 8, 14, and 18-20 under 35 U.S.C.
§ 103 as unpatentable over Chan, Tanenbaum, and Smith
Claim 8 depends from claim 3 which depends from independent claim 1. Claim 14
depends from independent claim 10. Claims 18 and 19 each depend from independent claim 16.
Claim 20 depends from claim 19. The Smith reference, as applied by the examiner, does not
make up for the deficiencies of Chan and Tanenbaum as discussed above in the context of the
rejection of the independent claims. Accordingly, the rejection of claims 8, 14, and 18-20 under
35 U.S.C. § 103 as unpatentable over Chan, Tanenbaum, and Smith is improper and cannot be
sustained.
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