Appeal No. 2006-2918
Application 09/844,919
We will sustain the examiner’s rejection of claim 11 although we
discourage this practice by the examiner of relying on references which are
not listed in the statement of the rejection or using Official Notice as a
substitute for the proper listing of references relied on. The examiner took
Official Notice that it was conventional in the art to compress video data for
transmission in order to save bandwidth. Thus, the rejection was not on
Allport alone, as argued by appellant, but instead, was on Allport and
Official Notice. The citation of Hendricks was merely used to replace this
Official Notice with an actual reference. The fact that Allport itself does not
suggest the advantages of compressed data transmission does not make the
rejection based on hindsight. The advantages of data compression were well
known at the time this application was filed as evidenced by the references
cited. Appellant has failed to address the merits of the examiner’s position
as to why the invention of claim 11 would have been obvious in view of the
cited evidence.
With respect to claim 13, appellant argues that the combination of a
fiber optic network with a base station that forms a wireless local area
network is not taught or suggested by Allport [brief, page 9]. The examiner
responds that Allport teaches everything except a fiber optic network, and
the examiner cites Hendricks as teaching a fiber optic network [answer,
pages 8-9]. Appellant responds that the examiner’s citation of Hendricks
represents hindsight reconstruction of the invention. Appellant points out
that since the rejection was on Allport taken alone, the citation of Hendricks
indicates that the rejection is deficient in making out a prima facie case of
obviousness [reply brief, page 4].
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