Appeal No. 2006-1279
Application No. 10/249,005
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 appellant have been considered in this decision.
Arguments which appellant could have made but chose not to make
in the brief have not been considered and are deemed to be waived
[see 37 CFR § 41.37(c)(1)(vii)(2004)].
As an initial matter, appellant argues that the secondary
reference to Fink does not qualify as prior art because the
examiner did not provide a copy of the underlying provisional
applications to support entitlement to its earlier filing date
[brief, page 7]. The examiner responds by citing a memorandum
from then-Deputy Commissioner Stephen Kunin dated Oct. 29, 2004
that ended the transitional practice of supplying copies of
provisional applications relied upon to give prior art effect
under 35 U.S.C. § 102(e) in view of their public availability via
the USPTO's Public PAIR (Patent Application Information
Retrieval) system [answer, page 4].
We agree with the examiner. Recent enhancements to Public
PAIR have obviated the need to supply copies of provisional
7
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