Appeal No. 96-2179 Page 16
Application 07/613,466
F. Anticipation of claim 49 by Wittkampf9
32. Appellants argue that Wittkampf does not teach
claim 49's "utilizing closed-loop control for adjusting said
pacing rate in accordance with the value of said RCP, and
causing said closed-loop control to self-adapt to changes in
the value of said RCP which are due to factors other than
stress, exercise and heart rate." We note that these
limitations are written in step-plus-function format.
33. We agree with the examiner that Wittkampf broadly
discloses the functions Appellants claim for their invention.
The examiner does not, however, identify with particularity
the steps in Wittkampf that anticipate, expressly or
inherently, the specific acts or their equivalents
corresponding to the claimed steps. Consequently, we reverse
this rejection of claim 49.
9 The Office action of 16 March 1992 (variously
labeled Paper 6 and Paper 18) at 5 rejects claims 38 and 49 as
anticipated by Wittkampf. The examiner inexplicably failed to
maintain the rejection against claim 38 in his answer. We
treat as withdrawn any rejection that is not repeated in the
examiner's answer. Paperless Acctg., Inc. v. Bay Area Rapid
Trans. Sys., 804 F.2d 659, 663, 231 USPQ 649, 651-652 (Fed.
Cir. 1986); Ex parte Emm, 118 USPQ 180, 181 (Bd. App. 1957).
In any case, we are reversing pro forma the art-based
rejections of claim 38.
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