Appeal 2007-0962
Application 09/928,347
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The Examiner relies on the following prior art references to show
unpatentability:
Noll US 2002/0054087 A1 May 9, 2002
(filed Apr. 17, 2001)
Hosken US 6,438,579 B1 Aug. 20, 2002
(filed Jul. 14, 2000)
The Examiner’s rejection2 is as follows:
Claims 1-23 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Noll in view of Hosken.
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Brief 3 and the Answer for their respective details. In this
decision, we have considered only those arguments actually made by
Appellants. Arguments which Appellants could have made but chose not to
make in the Brief have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii).
2 The Examiner withdrew a previous rejection of claims 9 and 22 under 35
U.S.C. § 112 (Answer 3).
3 An Appeal Brief was first filed on Nov. 9, 2005 and a first Examiner’s
Answer filed Jan. 27, 2006. A second Appeal Brief was filed on Aug. 23,
2006 to correct various defects identified by the Examiner. On Sept. 18,
2006, a third Brief was filed. In response, the Examiner filed an Examiner’s
Answer on Oct. 6, 2006. However, a third Examiner’s Answer was filed on
Nov. 15, 2006 to include a missing signature. See Appeal Center
Communication filed Oct. 26, 2006 (notifying Examiner of missing
signature). In this decision, we refer to the third Brief (filed Sept. 18, 2006)
and the Answer filed Nov. 15, 2006.
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