Appeal No. 2003-1967
Application No. 08/970,889
U.S.A., Inc., 868 F.2d 1251, 1257, 9 USPQ2d 1962, 1966 (Fed. Cir.
1989). Whether a preamble stating an intended purpose
constitutes a limitation to the claim depends on whether the
language is essential to particularly pointing out the invention.
Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 678-79,
7 USPQ2d 1315, 1318 (Fed. Cir. 1988).
We note that the method steps recited may be used on any
video program stored in a mass storage unit. The method steps do
not require that the data stored in the mass storage unit
comprises of a mosaic of intra-scene background layers.
Therefore, we find that the language found in the preamble is not
essential to particularly pointing out the invention as claimed
and constitutes introductory language of intended use.
Therefore, we will sustain the Examiner's rejection.
37 CFR § 1.192(a) states:
Appellant must, within two months from the date of the
notice of appeal under § 1.191 or within the time
allowed for reply to the action from which the appeal
was taken, if such time is later, file a brief in
triplicate. The brief must be accompanied by the fee
set forth in § 1.17(c) and must set forth the
authorities and arguments on which appellant will rely
to maintain the appeal. 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.
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