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 - 18 -Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: November 3, 2007