Appeal No. 2004-1608
Application 09/752,873
Arguments which appellant could have made but chose not to make
in the briefs have not been considered and are deemed to be
waived [see 37 CFR § 41.37(c)(1)(vii)(2004)].
Before we consider the merits of the rejection, we
address appellant’s argument that Ayukawa does not qualify as
prior art against the appealed claims. Ayukawa is a United
States application for patent which was published on August 29,
2002. The publication indicates that the application for patent
is a continuation of a parent application filed on April 5, 2001
which parent application was a continuation of a grandparent
application filed on August 16, 1999. Because the grandparent
application was filed as a 371 application, appellant argues that
the parent application is only entitled to the filing date of
April 5, 2001 which is after the filing date of the present
application [brief, page 3].
The examiner responds that the Ayukawa patent which
issued from the grandparent application has an effective filing
date of August 16, 1999 [answer, page 4]. Appellant responds
that the Ayukawa patent is not the document which was used in the
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