Appeal No. 2001-2238
Application 09/387,204
223 USPQ 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d
1048, 1052, 189 USPQ 143, 147 (CCPA 1976). Only those arguments
actually made by appellants have been considered in this
decision. Arguments which appellants could have made but chose
not to make in the brief have not been considered and are deemed
to be waived by appellants [see 37 CFR § 1.192(a)].
With respect to independent claim 17, the examiner has
indicated how he finds the claimed invention to be obvious.
Specifically, the examiner finds that Okamoto teaches every
aspect of the claimed invention except for the wavelength/spacing
condition 8/d < 16 and a bending flexure to support the moving
member. The examiner cites Suzuki as teaching a bending flexure
to support the moving member of an electrostatic actuator. The
examiner asserts that it would have been obvious to the artisan
to construct the actuator of Okamoto with the spatial
wavelength/spacing condition 8/d < 16 since the discovery of an
optimum or workable range involves only routine skill in the art
and because the spacing of the electrodes is a result effective
variable [answer, pages 3-4].
Appellants argue that the examiner has improperly applied
a per se rule of unpatentability. Appellants argue that this
rule does not apply in this case anyway because the prior art
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