Appeal No. 1999-1091
Application No. 08/273,790
Appellant argues (brief, page 4) that:
A central operating principle of the Davis ‘598 disclosure is that
certain telephone calls are handled only at the answering machine
410, whereas certain other telephone calls are allowed to ring
directly to the paging terminal 415. See Davis ‘598 at col.11, lines
5-12, 59-64. This provides an inherent screening effect wherein the
pager 420 receives only a select subset of messages
corresponding to only a portion of the calls received at the
answering machine 410. (Emphasis in original.)
It is apparent that appellant’s arguments are directed to the Figure 5 embodiment
of Davis.
In response to appellant’s argument, the examiner states (answer, page 8)
that:
[T]he examiner is not relying upon the pager embodiment disclosed
in Fig. 5 of Davis. The examiner’s rejection relies upon the main
embodiment of Figure 1, which is a wireline device, and as such,
has no power restrictions.
We agree with the examiner. By presenting arguments directed to the
embodiment of Davis that was not relied on by the examiner, the appellant simply
has not addressed the merits of the outstanding 35 U.S.C.§ 103 rejection. It is
clear from the rejection of record that the examiner is relying upon Figure 1 of
Davis (answer, page 4) to establish a prima facie case of obviousness, yet the
appellant chose not to address the references as they were applied by the
examiner. 37 C.F.R. § 1.192 (a) states in pertinent part that “[a]ny arguments or
authorities not included in the brief will be refused consideration by the Board of
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