Appeal 2007-2437
Application 09/816,080
Examiner has not set forth a sufficient initial showing that all the claimed
steps are taught by Mayers.
With respect to dependent claim 4, Appellant argues that there was no
mention of noise, let alone mutual modulated noise, by another transmitter in
the teachings of Mayers (Br. 8). The Examiner maintains that Mayers
teaches transmitting signals through a classical public channel which
“inherently” implies that the second user uses a receiver affected by mutual
modulated noise by another transmitter (Answer 6). We disagree with the
Examiner that the public channel would "inherently" be affected by mutual
modulated noise in the transmission of the photons as taught by Mayers. We
find no support for the Examiner’s assertion. Therefore, we will not sustain
the rejection of dependent claim 4 since the Examiner has not set forth an
initial showing that all the claimed steps are taught by Mayers.
With respect to dependent claims 5 and 6, Appellant argues that
Mayers does not disclose the recited limitations regarding the second user
determining the threshold value of step (c), considering at least three factors;
transmission rate, transmission error rate and degree of security (Br. 8). We
agree with the Appellant that the Examiner has not shown that Mayers
teaches the recited three factors, and the Examiner merely relies on the
teaching of measuring a threshold value (Answer 6-7). Since we find that
the Examiner has not made the requisite initial showing that the recited three
factors are taught by Mayers, we will not sustain the rejection of dependent
claims 5 and 6.
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