Appeal 2007-1245
Application 09/950,253
Appellant’s admitted prior art on Page 1 of the specification (“APA”).
1. Claims 12, 13, and 15 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Kuwata.
2. Claims 1-11 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Kuwata in view of APA.
3. Claim 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Kuwata.
Rather than repeat the arguments of Appellant or the Examiner, we
refer to the Briefs and the Answer for their respective details. In this
decision, we have considered only those arguments actually made by
Appellant. 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 C.F.R. § 41.37(c)(1)(vii).
Kuwata’s provisional application as support for the corresponding findings
from the published application (Answer 9-20).
We recognize that Kuwata’s published application constitutes prior art only
for subject matter properly supported by the provisional application in
accordance with 35 U.S.C. § 112, first paragraph. See MPEP § 2136.03(III);
see also MPEP § 706.02(V)(D). Nevertheless, we rely exclusively on
Kuwata’s provisional application in this opinion – a document whose
qualification as prior art is undisputed.
In any event, to the extent that certain content of Kuwata’s published
application may differ from the corresponding provisional application, such
perceived differences are simply not germane to our findings regarding the
disclosure of Kuwata – findings based solely on the provisional application.
We therefore express no opinion regarding any apparent differences between
Kuwata’s published and provisional applications.
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