Appeal 2007-0997
Application 09/875,670
subject matter pertains.” See 35 U.S.C. § 103(a) (2002); In re
Dembiczak,175 F.3d 994, 998, 50 USPQ2d 1614, 1616 (Fed. Cir. 1999).
Further, a rejection based on section 103 must rest upon a factual
basis rather than conjecture, or speculation. “Where the legal conclusion [of
obviousness] is not supported by the facts it cannot stand.” In re Warner,
379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967). See also In re Lee,
277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002) and In re
Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
ANALYSIS
The Examiner does not show where the prior art teaches or suggests
that a proxy is included in the IP network device. Although the Examiner
does not clearly define the IP device in the disclosure of Cheng, we agree
with Appellants that Cheng’s proxy which is included in the glue layer
cannot be equated with the claimed proxy on an IP device.
Similarly, the Examiner’s assertion that the glue layers allow either
the HAVi device or the Web server to control each other (Answer 10),
ignores the specific recited features of the claim that requires each one of a
different HAVi device and the IP device be controlled by the other devices
through the proxy. In Figure 3 of Cheng, the Web server 180 would not be
able to control HAVi device 250 through the proxy in the glue layer.
Thus, we find that the Examiner’s rejection rests on speculation and
less than a preponderance of the evidence and thus, fails to provide sufficient
basis for finding claim 29, as well as claims 1, 3-10, 19, 25-28, 33, and 35-
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