Appeal No. 2006-1785 Page 13
Application No. 10/768,827
(“In other words, if granting patent protection on the disputed claim would
allow the patentee to exclude the public from practicing the prior art, then
that claim is anticipated, regardless of whether it also covers subject matter
not in the prior art.”). In the instant case, we do not agree with the
examiner that McLain’s indexes teach the instant recited “requests” because
McLain’s message pointer for accessing individual data entries is not
contained within the command response table, as required by the language
of claim 26 [see “message pointer” at col. 10, line 6]. We also do not agree
with appellants that McLain’s commands are not requests. We note again
that appellants have expressly defined the term “request” in the instant
specification as broadly encompassing “a communication received from a
computer application by a computing system” [page 6, lines 3 and 4].
Therefore, we find that appellants’ own definition for the claimed “requests”
broadly reads upon the commands disclosed by McLain that are shown
contained within the command response table [claim 26; see also McLain,
command field 1414, fig. 14]. We also find that McLain clearly discloses
requests (i.e., commands corresponding to function calls intended for the
target system being emulated) and associated responses at col. 2, lines 49-
54:
In order to adequately test a control system, a system, method and
computer program product for simulating telecommunication network devices
is needed. Simulation should include emulation of network device functionality
in the context of receiving commands and data from a control system and
formulating intelligent responses [emphasis added].
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