Appeal 2007-1047
Application 09/944,892
(1) capable of performing custom operations on messages that pass
through the nodes (e.g., error checking, col. 6, ll. 49-53),
(2) do not require a central server or computing resource (Matsuda,
col. 4, ll. 50-52),
(3) are aware of the contents of transported messages (id.), and,
(4) can participate (i.e., are capable of participating) in the
processing and modification of messages traveling through the
network (Matsuda, col. 4, l. 53 through col. 5, l. 27, Figs. 3 and
4) (See Br. 10, ¶ 1).
We emphasize that Appellants have specifically used the language
“capable of” and “can participate” in construing the plain meaning of an
“active network” (see Br. 10, ¶ 1). Thus, we find that each element of
Appellants’ proffered plain meaning of the claim term “active network” is
met by Matsuda’s teaching of intelligent multiplex nodes in a vehicle
network (see Br. 10, ¶ 1).
Furthermore, we do not agree with Appellants’ assertion that the
Examiner has impermissibly used hindsight in formulating the rejection. We
note that the U.S. Supreme Court recently reaffirmed that a factfinder should
be aware of the distortion caused by hindsight bias and must be cautious of
argument reliant upon ex post reasoning. KSR Int’l Co. v. Teleflex Inc., 127
S. Ct. at 1742, 82 USPQ2d at 1397. See also Graham v. John Deere Co.,
383 U.S. at 36, 148 USPQ at 474. Nevertheless, in KSR the Supreme Court
also qualified the issue of hindsight by stating that “[r]igid preventative rules
that deny factfinders recourse to common sense, however, are neither
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