Appeal 2007-1259
Application 10/054,213
not ours, to show why the Examiner’s determination that the structures are
equivalent is in error. Arguments not made in the brief are waived. Bd.R.
41.37(c)(1)(vii).
Secondly, Stimming argues that “Wilkinson raises the anode potential
without the need for means for impressing a positive voltage pulse to the
anode” and thus “provides no motivation for providing the means for
impressing a positive voltage pulse to the anode.” (Br. 5). A discussion of
motivation is not relevant to a determination of anticipation under 35 USC §
102(b). We need not and do not address Stimming’s argument concerning
motivation to modify Wilkinson.
We note that claim 2 was not argued separately (see Bd.R.
41.37(c)(1)(vii) requiring separately argued claims to be placed under a
subheading and noting that “[a] statement which merely points out what a
claim recites will not be considered an argument for separate patentability.”)
Nonetheless, we note that claim 2 is a method claim and does not contain
means plus function language. The claimed method step of “impressing at
least one positive voltage pulse on the anode” is, as discussed above, met by
the fuel starvation methods disclosed in Wilkinson. In particular, Wilkinson
teaches a method of removing carbon monoxide from an anode catalyst and
does so by fuel starvation which would, as Stimming concedes, result in a
positive voltage pulse on the anode.
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