Appeal 2007-0016
Application 10/700,496
Appellants have been considered in this decision. Arguments which
Appellants 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)].
Appellants’ arguments in response assert that the Examiner has not
shown how each of the claimed features is present in the disclosure of Wu so
as to establish a case of anticipation. In particular, Appellants’ arguments
(Br. 10-12; Reply Br. 2-4) focus on the contention that, in contrast to the
claimed invention, the microphone in Wu is not provided on the bottom face
of the binoculars.
After reviewing the Wu reference in light of the arguments of record,
however, we are in general agreement with the Examiner’s position as stated
in the Answer. We find to be persuasive the Examiner’s assertion (Answer
4, 6-7) that the user’s preference in how to hold the binoculars in Wu will
determine whether the microphone is on the top surface or bottom surface.
For example, as suggested by the Examiner, if the user chooses to hold the
binoculars so that the control buttons 22 and 23 are operated with the thumb
rather than the index finger then the microphone would be on the bottom
surface of the binocular structure (with reference to the illustration in Wu’s
Figure 1). In our view, this is a reasonable interpretation of the disclosure of
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