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 - 14 -Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: November 3, 2007