Appeal No. 2000-1526
Application No. 08/902,196
Appellants counter the examiner’s rejection by listing their argument under a
section of the brief [page 14] labeled “Enablement” and argue that the specification
unambiguously states that the present test device produces a calibrated output signal,
that “calibrated” means that the output signal conforms to a standard and that the
output signals of different test devices conform to the identical standard. Therefore,
conclude appellants, different ones of the test apparatus produce substantially identical
test results.
Moreover, appellants argue that while the specification does not explicitly state
that the drive characteristic of the device is designed with the inverse response such
that the combination of the drive characteristic and the typical psychoacoustic response
is flat, this was “well-known in the art” and “common practice in hearing aid design”
[brief-pages 14, 15].
Appellants’ arguments about what was “well known” and “common practice” in
the art appear to be arguments against an enablement rejection and, it appears from
the heading at page 14 of the brief, that appellants believe that the rejection is based
on the enablement clause of 35 U.S.C. § 112. However, the rejection is clearly based
on the written description section of 35 U.S.C. § 112. While something may, in fact, be
“well known,” this, alone, does not provide evidence that the inventors were in
possession of this “something” at the time of filing the patent application.
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