Appeal No. 1998-2305
Application No. 08/670,466
claims 1, 3 and 5 to 13 under 35 U.S.C. § 103(a) over Ishigaki. We also reversed the
rejection of claims 1, 3 and 5 to 13 under 35 U.S.C. § 103(a) over Wang and remanded the
application to the Examiner for proper consideration of the declaration under 37 CFR 1.130,
filed March 17, 1997.2
Appellants have not argued that our decision was based on erroneous findings of fact
concerning the prior art. Rather, we find the Appellants in essence are expressing their
disagreement with the merits of our opinion. In support of their position, Appellants for the
first time present a declaration from Honan and a declaration from Isaac. We will not
consider any new arguments and/or new evidence which were not raised in the Brief. See 37
CFR § 1.192(a) (1997)(“Any 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.”); see also Ex parte Hindersinn, 177 USPQ 78 (Bd. App. 1971).
The evidence presented by Appellants has not been evaluated by the Examiner in this
case. Appellants have not argued that there was good cause for presenting this evidence
subsequent to the Board’s decision. See 37 CFR § 1.195 (1969). Attempting to present
evidence not presented to the Board prior to its decision and which is advanced for the first
2 The Examiner has indicated the declaration complies with 37 CFR 1.130 and the Wang
reference has been disqualified as prior art. (Paper no. 20).
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