Appeal No. 1999-2069
Application 08/397,639
Merrell Dow and Pharmaceuticals, Inc. , 800 F.2d 1208, 1210-11
(D.C. Cir. 1986) ("We generally will not entertain arguments
omitted from an appellant's opening brief and raised initially in
his reply brief. . . . Considering an argument advanced for the
first time in a reply brief, then, is not only unfair to an
appellee, . . . but also entails the risk of an improvident or
ill-advised opinion on the legal issues tendered."). The
Examiner was not permitted to file a supplemental examiner's
answer under the new rules, 37 CFR § 1.193(b(1), effective
October 10, 1997, and it would be unfair to permit Appellants to
present arguments to which the Examiner could not respond.
Because the claims are grouped to stand or fall together
with claim 1, the only issue is whether claim 1 is patentable
over Kano in view of Smilansky or Frankot.
Obviousness
Kano teaches image registration (alignment of two images) of
two radiation images so that the images can be subjected to
subtraction processing (e.g., col. 5, lines 60-64; Fig. 1B);
thus, Kano teaches the limitations of the preamble of claim 1.
Kano teaches that the nonlinear warping (transformation) is
performed based on local matchings of a number of small regions
of interest (ROIs) at corresponding locations in the two images
(e.g., col. 5, lines 64-67), so the following steps are performed
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