Appeal No. 1998-2848
Application 08/398,862
Accordingly, the rejection will be decided based on the
sufficiency of the Peppel declarations to swear behind Smith.
Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391, 21 USPQ2d
1281, 1285 (Fed. Cir. 1991) ("It is not the function of this
court to examine the claims in greater detail than argued by
an appellant, looking for nonobvious distinctions over the
prior art."); In re Wiechert, 370 F.2d 927, 936, 152 USPQ 247,
254 (CCPA 1967) ("This court has uniformly followed the sound
rule that an issue raised below which is not argued in this
court, even if it has been properly brought here by a reason
of appeal, is regarded as abandoned and will not be
considered. It is our function as a court to decide disputed
issues, not to create them."); In re Wiseman, 596 F.2d 1019,
1022, 201 USPQ 658, 661 (CCPA 1979) (arguments must first be
presented to the Board before they can be argued on appeal).
The Peppel declarations do not establish conception of
the
claimed invention coupled with diligence to the filing
date
A prior art patent which does not claim the same
patentable invention may be sworn behind under 37 CFR § 1.131
by a showing of facts sufficient to establish a completion of
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