Appeal No. 2001-0299 9
Application No. 08/993,861
803 F.2d at 708, 231 USPQ at 642-43. See also Hindersinn, 177 USPQ at 80; Harvey,
163 USPQ at 573; Cooper, 154 F.3d at 1331, 47 USPQ2d at 1904.
Appellants’ complaint (request, page 12) that the Board “has failed to afford due
weight to the means 24 for injecting fuel element expressly recited in apparatus claim
11" is entirely unfounded. As pointed out supra, the statement on page 12 of our
decision that “this recitation in claim 1 does not positively call for a fuel injection nozzle”
(emphasis added) has never been applied to claim 11. Further, as pointed out above
with regard to claim 7, Koch discloses a fuel nozzle 27 for injecting fuel into an
upstream end of the swirl cup.
Appellants (request, page 11) also urge that “[t]he Board’s cursory review of
means-plus-function claim 11 is not only erroneous, but fails to recognize the
examiner’s complete failure in para. 4 of the final rejection to establish any basis for the
rejection thereof.” We recognize that the burden of proof is on the examiner, not
appellants, in supporting a rejection under 35 U.S.C. § 102 (see page 11 of appellants’
request). However, in appealing a rejection, appellants bear the burden and
responsibility of perfecting an argument traversing the rejection in accordance with the
requirements set forth in 37 CFR §§ 1.191 and 192. Specifically, as set forth in 37 CFR
§ 1.192(a), “[a]ny arguments or authorities not included in the brief will be refused
consideration by the Board of Patent Appeals and Interferences unless good cause is
shown.” Further, 37 CFR § 1.192(c)(8)(C)(iii) requires that, for each rejection under 35
U.S.C. § 102, “the argument shall specify the errors in the rejection and why the
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