Appeal No. 1997-1197
Application 08/130,255
amendment after final rejection (Paper No. 7). Therefore,
Appellants' raising the means-plus-function interpretation
after the final rejection is untimely for purposes of this
appeal. See In re Webb, 916 F.2d 1553, 1556, 16 USPQ2d 1433,
1435 (Fed. Cir. 1990) ("[A]n examiner's final rejection, which
precipitates the statutory right to appeal to the Board,
35 U.S.C. § 134 (1988), constitutes the 'decision' of an
examiner for purposes of § 1.196(a).").
Second, Appellants have failed to comply with the Office
procedure for § 112, sixth paragraph, by showing that the
prior art structure is not the same or an equivalent. See
Examination Guidelines for Claims Reciting a Means or Step
Plus Function Limitation In Accordance With 35 U.S.C. § 112,
6th Paragraph, 1162 Off. Gaz. Pat. & Trademark Office 59, 59-
60 (May 17, 1994) (the examiner initially makes a prima facie
case that a limitation is anticipated by showing that a prior
art structure performs the function, then the burden of going
forth with the evidence shifts to applicant to show that the
prior art structure is not the same as or an equivalent of the
structure, material, or acts described in the specification).
Appellants merely assert that the Examiner has not shown that
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