Okajima’s Brief
Okajima maintains that Bourdeau’s claims 13-24 and 26-28
are unpatentable under 35 U.S.C. § 103 over DE ‘503 and/or US
‘041 in view of EP ‘400 alone or in combination with DE ‘746,
AT ‘637 or US ‘622. (Paper 51 at 24).
At the outset, we note that Bourdeau in its opposition
argues that the combination of references Okajima relies upon
to demonstrate that Bourdeau’s claims are unpatentable is
different than the combination of references relied upon in
Okajima’s preliminary motion 2. (Paper 53 at 16-17).
Bourdeau argues that the Board should not consider the new
arguments because a “party shall not be entitled to raise for
consideration at final hearing any matter which properly could
have been raised by a motion ...” 37 CFR § 1.655(b). (Paper
53 at 17).
We agree that the references Okajima relied upon in its
preliminary motion 2 have been applied differently in its
brief. (Findings 6 and 7). The new rationale should not be
considered. Alternatively, we have considered the merits of
Okajima’s new rationale and find that in any event Okajima has
failed to prove a prima facie case of obviousness.
Bourdeau claims 13, 27 and 28 are independent claims.
Bourdeau claims 14-24 and 26 depend either directly or
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