Appeal 2007-0929
Application 10/000,774
According to Appellant, “[s]imply because a network discussed in Doviak
may experience transmission problems, prompting a decision to select
another network[,] does not mean that delivery error of a message occurred”
(Reply Br. 4). We agree with the Examiner that Doviak’s detection of
transmission problems on the current network can accurately be
characterized as “an indication of a delivery error for a previous message to
be sent,” which we have construed to mean “an indication of a delivery error
for a message previously intended to be sent.” The detection of transmission
problems on the current network is an indication that continued transmission
on that network “will cause delivery errors” (Answer 10) for a message
intended for any destination served by the current network , which is enough
to satisfy the claim language at issue.
Appellant further disputes the combinability of Doviak and Robinson
based on the assertion that multiple network subscription of the destination
is already known in Doviak (Br. 6; Reply Br. 5). Appellant points to
specific portion in Doviak teaching communication over multiple networks
and admits that combining Robinson’s determination of the existing multiple
network subscription would be unnecessary (id.).
Relying on Appellant’s admission that the teachings in Robinson the
Examiner intended to combine with Doviak are actually present in Doviak
and without any need to address Robinson, we find that the claimed subject
matter in claim 21 would have been obvious within the meaning of
35 U.S.C. § 103.1
1 The Board may rely on less than all of the references applied in an
obviousness rejection without designating it as a new ground of rejection.
See In re Bush, 296 F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA 1961); In
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