Ex parte REDDY et al. - Page 14




          Appeal No. 1997-1197                                                         
          Application 08/130,255                                                       

          amendment after final rejection (Paper No. 7).  Therefore,                   
          Appellants' raising the means-plus-function interpretation                   
          after the final rejection is untimely for purposes of this                   
          appeal.  See In re Webb, 916 F.2d 1553, 1556, 16 USPQ2d 1433,                
          1435 (Fed. Cir. 1990) ("[A]n examiner's final rejection, which               
          precipitates the statutory right to appeal to the Board,                     
          35 U.S.C. § 134 (1988), constitutes the 'decision' of an                     
          examiner for purposes of § 1.196(a).").                                      
               Second, Appellants have failed to comply with the Office                
          procedure for § 112, sixth paragraph, by showing that the                    
          prior art structure is not the same or an equivalent.  See                   
          Examination Guidelines for Claims Reciting a Means or Step                   
          Plus Function Limitation In Accordance With 35 U.S.C. § 112,                 
          6th Paragraph, 1162 Off. Gaz. Pat. & Trademark Office 59, 59-                
          60 (May 17, 1994) (the examiner initially makes a prima facie                
          case that a limitation is anticipated by showing that a prior                
          art structure performs the function, then the burden of going                
          forth with the evidence shifts to applicant to show that the                 
          prior art structure is not the same as or an equivalent of the               
          structure, material, or acts described in the specification).                
          Appellants merely assert that the Examiner has not shown that                

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