Appeal No. 1998-2848
Application 08/398,862
contained in a memory (which is missing from the list of
structure), the structure included with the ETC is enough to
provide statutory subject matter. Accordingly, the § 101
rejection of claims 38 and its dependent claim 39 are
reversed.
35 U.S.C. § 102(e)
The rejection stands or falls based on the sufficiency
of the Peppel declarations to antedate the Smith patent
The merits of the anticipation rejection over Smith have
never been argued during prosecution and are not argued in the
Brief. See 37 CFR § 1.192(c)(8)(iii) (1997) (In the rule
governing the content of the Argument section of the appeal
brief: "For each rejection under 35 U.S.C. 102, the argument
shall specify the errors in the rejection and why the rejected
claims are patentable under 35 U.S.C. 102, including any
specific limitations in the rejected claims which are not
described in the prior art relied upon in the rejection.").
Appellant relies exclusively on the (First) Declaration Under
37 CFR § 1.131 by the inventor Tyler Peppel (part of Paper
No. 5) and the Second Declaration Under 37 CFR § 1.131 by Mr.
Peppel (Paper No. 8) to antedate the Smith patent.
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