Appeal No. 2000-2134
Application No. 08/868,663
Turning next to the prior art rejections, appellant argues
(request, page 3) that “[t]he twice rejected decision of the
administrative patent judge in this case is the final rejection
and not the Examiner’s Answer.” Appellant also argues (request,
page 4) that the examiner never made a showing that the rejected
claims are readable on the cited references. If appellant
considered the examiner’s final rejection of claims 21, 27 and 29
to be premature, then appellant should have protested such an
action via a petition to the Director under 37 CFR § 1.181, and
not an appeal to the Board under 37 CFR § 1.191. With respect to
appellant’s argument that the examiner did not present a prima
facie showing of anticipation of the noted claims, we find that
the examiner presented such a case in the examiner’s answer
(answer, pages 5 through 11). The reply brief failed to rebut
the points made by the examiner in the answer. Thus, we see no
need to modify our decision or to remand to the examiner as
requested by the appellant (request, pages 4 and 5).
Appellant’s argument (request, page 5) concerning
declarations supposedly made on the record by Messrs. Eilts and
Goldman is not timely since it was not argued in the briefs.
Even if they were of record, we do not see the relevance of such
declarations to an anticipation rejection.
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