Appeal 2007-1050
Application 10/058,360
The top of page 4 of the principal Brief notes that the parent
application of this one was subject to a prior decision by a panel of this
Board on November 29, 2001 in appeal number 1999-1693. This decision
affirmed the examiner’s rejection of all of the then pending claims on appeal
under Section 103. Subsequently, this parent application was abandoned.
At the outset, we treat Appellants footnote 1 at the bottom of page 12
of the principal Brief on appeal. Although Appellants urge that Deken is not
prior art under 35 U.S.C. § 102, Appellants have not presented any evidence
before us that, to the extent relied upon by the Examiner, it is not prior art.
Appellants have not contested before us that Deken does in fact describe
activities at SLAC during the time frame of 1991 through 1994 and the
Examiner has not relied upon any activities other than those set forth in
Deken that have occurred with respect to this organization at that time
frame. As to any arguments presented before us, Appellants have therefore
waived any urging that Deken is not prior art under § 102 to the extent relied
upon by the Examiner. Moreover, this reference appears to be consistent
with the guidance provided by In re Epstein, 32 F.3d 1559, 31 USPQ2d
1817 (Fed. Cir. 1994), since Deken appears to be in a form of a general
abstract of activities that were documented later in time from their actual
date of occurrence.
General arguments are provided at pages 13 through 15 of the
principal Brief on appeal relating to an overview of the present invention.
Here Appellants make general references to the Background and Summary
of the Invention. We do so likewise here. Appellants discuss their
understanding of the prior art at Specification page 1, line 13 through page 2,
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