Appeal 2007-1114
Application 10/314,687
it teaches away from the claimed invention, and whether it motivates a
combination of teachings from different references are questions of fact.” In
re Fulton, 391 F.3d 1195, 1199-1200, 73 USPQ2d 1141, 1144 (Fed. Cir.
2004) (internal citations omitted). In rejecting claims under 35 U.S.C.
§ 103, it is incumbent upon the Examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine, 837 F.2d 1071,
1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the Examiner
must make the factual determinations set forth in Graham v. John Deere
Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966). Furthermore, “‘there must
be some articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness’ . . . . [H]owever, the analysis need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” KSR Int’l v.
Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d 1385, 1396 (2007) (quoting
In re Kahn, 441 F.3d at 988, 78 USPQ2d at 1336 (Fed. Cir. 2006)).
With respect to dependent claims 22-25, Appellants argue that the
Examiner is in error in rejecting these claims under 35 U.S.C. § 103 since
the independent claim has been rejected only under 35 U.S.C. § 102 and not
under obviousness (Br. 13-15). Appellants' argument is not persuasive.
Additionally, Appellants contend that an affidavit is needed for the
Examiner to support the Examiner’s rejection (Br. 15). We disagree with
Appellants and find that the Examiner’s rejection is supported by the
Examiner’s claim interpretation. Here, we agree with the Examiner’s
common sense analysis of the prior art that if there is a faulty node or link
which is being routed around or bypassed then that would also be a time
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