Appeal No. 1998-1659
Application No. 08/486,635
argument to which the examiner had no chance to respond and,
therefore, was not properly before the Board. Note also In re
Kroekel, 803 F.2d 705, 708-09, 231 USPQ 640, 642-43 (Fed. Cir.
1986) and Cooper v. Goldfarb, 154 F.3d 1321, 1331, 47 USPQ2d
1896, 1904 (Fed. Cir. 1998) wherein the Court noted that a
party cannot wait until after the Board has rendered an
adverse decision and then present new arguments in a request
for reconsideration. Nonetheless, we will consider
appellant's new arguments as to claim 8 as follows.
Appellant contends (Request, page 3) that based on the
disclosure at column 3, lines 19-22, Lee teaches that the
aperture formed between the spacers would be at least 60
percent of the size of the aperture formed in the dielectric
material. However, appellant discusses relative aperture
diameters, whereas the claim calls for a relationship between
the lateral cross-sectional areas of the apertures. Further,
we fail to understand how appellant arrives at 60 percent. On
the other hand, we find that Lee suggests the claimed
relationship between the lateral cross-sectional areas.
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