Appeal No. 96-2194
Application 08/042,292
appellant that the creation and sensing of at least two electric
fields is required by claims 1's recitations of "at least two
pairs of electrodes . . . with one electrode in each pair
operating as a transmitter of an electric field" and "means to
drive each of the transmitting electrodes at a separate
frequency." Independent claim 13 states the same requirement in
different language: "means to create an oscillating electric
potential at one of the electrode means at each side of the
planar region and means to sense the oscillating electric
potential at the other of the electrode means at each side."
We note that the opening brief, in arguing that the
claims require at least two electric fields, did not contend that
the fields must have different frequencies; this argument
appeared for the first time in the reply brief (at 2). This
argument will not be considered in connection with this appeal,
because the reply brief fails to identify the new point or points
in the Answer to which the new argument is addressed, as required
by 37 CFR § 1.193(b).
Nevertheless, we agree with appellant that the
rejection of claim 1 should be reversed on the ground that the
references fail to suggest a sensing apparatus using two
transmitting electrodes to create two electric fields.
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