Ex Parte 5555478 et al - Page 15




              Appeal No. 2006-0697                                                                                         
              Reexamination 90/006,402                                                                                     

              C. The rejection of claims 9 and 15 under 35 U.S.C.                                                          
                     § 103 as unpatentable over Chan, Tanenbaum, and Bales                                                 
                     Claim 9 depends from claim 3 which depends from independent claim 1.  Claim 15                        
              depends from independent claim 10.  Tanenbaum and Bales, as applied by the examiner, do 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 9 and 15 under 35                 
              U.S.C. § 103 as unpatentable over Chan, Tanenbaum, and Bales cannot be sustained.                            
              D.     Counsel’s Acknowledgment of Prior Art                                                                 
                     At oral hearing on March 20, 2006, counsel for the appellant acknowledged (1) that the                
              appellant is not the first to provide a datagram service for transmission of data packets each of            
              which includes a destination address to be read by intelligent routers which determine the                   
              transmission path independently for each packet based on the destination address contained in                
              each packet, and (2) that the differences between the appellant’s invention and prior art datagram           
              transmission networks are (a) that while the appellant’s invention employs an all-optical data               
              path, the prior art does not, and (b) that while the appellant’s invention employs “three” levels of         
              intelligent routers the prior art does not.2  When asked immediately thereafter how many levels              
              of intelligent routers such prior art used, if not three, counsel replied that it would depend on the        


                                                                                                                          
                     2     Counsel for the appellant was informed that for purposes of the inquiry a datagram is           
              a data packet for transmission which includes a data portion and a destination address portion.              



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