Appeal No. 1998-2841
Application No. 08/463,282
In the Brief and Reply Brief, appellant refers to several U.S. patents which serve as
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extrinsic evidence of both the state of the prior art and the relative skill of those in the art.
Yet, the Answer does not address the evidence provided by appellant in rebuttal to the
rejection. Of particular interest is U.S. Patent 5,103,221 (Memmola), which is listed as
“prior art of record relied upon in the rejection of claims under appeal” (Answer, page 5),
but is not otherwise mentioned in the rejection.
Memmola discloses a remote-control security system, suitable for use with an
automobile, which includes a remote control unit and a receiving unit (Fig. 1). The remote
control unit includes a keyboard, an encoder, and a signal emitter. The receiving unit
includes a decoder. As described in particular at columns 8 through 13, Memmola
discloses a code comprising a base, or “starting,” security code. Each time a keyboard
switch is activated, an algorithm determines modification of the present code. The remote
control unit encodes a signal which includes the base code, the modified code, and the
channel code (which is a unique switch code). The encoded signal may be transmitted to
the receiving unit, which decodes the received signal and compares the signal to the
4Enablement is determined as of the filing date of the application. Hybritech Inc. v. Monoclonal
Antibodies, Inc., 802 F.2d 1367, 1384, 231 USPQ 81, 94 (Fed. Cir. 1986). Appellant refers, at least on
page 16 of the Brief, to U.S. Patent 5,517,187 (Bruwer), issued May 14, 1996. However, the relevant date
for enablement is the instant filing date of June 5, 1995. Bruwer’s disclosure of Bruwer’s invention cannot
be used as evidence relating to what the artisan knew in June, 1995. Later publications may, in some
circumstances, be used as evidence to show the state of the art at an earlier time. See, e.g., Hogan, 559
F.2d at 605 n.17, 194 USPQ at 537 n.17 (noting use of later publications as evidence of the state of art
existing on the filing date of an application). Here, however, appellant refers to Bruwer’s own invention, of
which the artisan was not necessarily aware in June, 1995.
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