Appeal No. 2002-2027 Page 9
Application No. 09/209,304
cures the aforementioned deficiency of Stich.1 Absent a teaching or suggestion of
determining a force constant error based on the difference between a desired velocity
and a measured velocity during the acceleration of a disc drive's actuator, the examiner
fails to present a prima facie case of obviousness. Therefore, we reverse the
obviousness rejection of claims 1-7 and 9-13.
CONCLUSION
In summary, the rejection of claim 8 under § 102(b) is affirmed. In contrast,
the rejection of claims 1-7 and 9-13 under § 103(a) is reversed. "Any arguments or
authorities not included in the brief will be refused consideration by the Board of Patent
Appeals and Interferences. . . ." 37 C.F.R. § 1.192(a)(2002). Accordingly, our
affirmance is based only on the arguments made in the brief. Any arguments or
authorities not included therein are neither before us nor at issue but are considered
waived. No time for taking any action connected with this appeal may be extended
under 37 C.F.R. § 1.136(a).
1 Responding to the appellant's arguments, the examiner mentions, "[t]he
velocity error of Lee is in accordance with the definition of the force constant error on
page 6, lines 21-23 of the specification." (Examiner's Answer at 8.) Being basically a
board of review, we leave it to the examiner to decide whether to make an anticipation
rejection based on the reference.
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