Appeal 2006-2730
Application 10/415,631
The rejections as presented by the Examiner are as follows:
1. Claims 11-16, 21, and 22 are rejected under 35 U.S.C. § 102(b)1 as
being anticipated by Pelrine.
2. Claims 17 and 18 are rejected under 35 U.S.C § 103(a) as
unpatentable over Pelrine.
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Briefs and the Answer for their respective details. Only those
arguments actually made by Appellants have been considered in this
decision. Arguments which Appellants could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
OPINION
It is our view, after consideration of the record before us, that the
disclosure of Pelrine fully meets the invention set forth in claims 11-16, 21,
and 22. We also conclude that the evidence relied upon and the level of skill
in the particular art would have suggested to one of ordinary skill in the art
the invention set forth in claims 17 and 18. Accordingly, we affirm.
1 Although the Examiner relies on § 102(b) as a basis for the anticipation
rejection, the Pelrine reference actually qualifies as prior art under § 102(e) –
not § 102(b). The present application is a national stage application filed
under 35 U.S.C. § 371. Therefore, the filing date of this national stage
application is Oct. 31, 2001 – the international filing date. See 35 U.S.C.
§ 363. See also MPEP § 1893.03(b). Since Pelrine was (1) published less
than one year after the filing date of the present application, and (2) filed
before this application’s filing date, it qualifies as prior art under § 102(e).
Nevertheless, we deem this procedural error harmless since it does not affect
our assessment of the merits of the anticipation rejection.
3
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