Appeal No. 96-2179 Page 10
Application 07/613,466
parameter--evoked potential--to produce the same result--the
depolarization gradient. (Compare '900 at 2:29-53 with
Paper 1 at 4:12-14; see also Callaghan '497 at 7:51-54
and 8:25-66.) The fact that the means in Callaghan '900 are
specified in greater detail does not obscure the fact that the
same structures accomplish the same function in both claims.
21. We find that the means for comparing and controlling
based on a parameter are equivalent to the closed-loop control
means. Again, Callaghan '900 simply defines the same
structures accomplishing substantially the same function in
greater detail. Appellants contend that Callaghan '900 does
not have a closed loop. (E.g., Paper 18 at 16.) We agree
with the examiner that this unsupported contention does not
make sense on its face. Callaghan '900 appears to meet the
definition presented in the third full paragraph on page 10 of
Appellant's second revised brief, quoting I. Singer et al.,
Initial Clinical Experience with a Rate Responsive Pacemaker,
12 PACE 1458, 1459 (1989). To the extent a subtle difference
exists, Appellants have failed to explicate it. Cf. Clintec
Nutrition Co. v. Baxa Corp., 44 USPQ2d 1719, 1723 n.16 & text
(N.D. Ill. 1997) (Court will not look for evidence that party
has failed to present directly).
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