Appeal No. 1999-2064 Page 8
Application No. 08/619,853
We sustain the rejection of claims 29, 37 and 39 under
35 U.S.C. § 103, but not the rejection of claims 30 to 36, 38
and 40 to 48.
Claims 30 and 40 to 45
We agree with the appellant's argument (brief, pp. 7-10)
that the claimed linear bands positioned as set forth in
independent claim 30 would not have been obvious at the time
the invention was made to a person having ordinary skill in
the art from the subject matter of Mowry's claim 12. In that
regard, we note that Mowry's claim 12 fails to teach each band
having "first and second substantially parallel substantially
linear edges" and each of the bands engaging others of the
3(...continued)
§ 102(g). We note that in parent Application No. 07/817,894
the appellant did not copy claim 12 of Mowry for purposes of
interference as suggested by the examiner. On these facts,
the appellant's refusal to make the suggested claim
constitutes a concession that the subject matter of that claim
is prior art as to the appellant within the meaning of 35
U.S.C. § 102(g) and 35 U.S.C. § 103. Otherwise stated, the
appellant's refusal to make the suggested claim constitutes a
disclaimer of the invention covered by that claim and the
appellant is not entitled to claims which do not define
patentably over claim 12 of Mowry. See In re Ogiue, 517 F.2d
1382, 1391, 186 USPQ 227, 235 (CCPA 1975) and
37 CFR § 1.605(a).
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