Appeal 2007-1288
Application 10/195,744
In our view, the Examiner’s analysis is sufficiently reasonable that we
find that the Examiner has as least satisfied the burden of presenting a prima
facie case of anticipation. The burden is, therefore, upon Appellants to come
forward with evidence and/or arguments which persuasively rebut the
Examiner’s prima facie case. Only those arguments actually made by
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
Minowa so as to establish a prima facie case of anticipation. Appellants’
arguments (Br. 7; Reply Br. 2-3) initially focus on the contention that, in
contrast to the claimed invention which is directed to adaptive cruise control
(ACC), the system of Minowa operates only in response to a driver’s request
for acceleration/deceleration.
In our view, however, to whatever limited meaning Appellants’
arguments assert should be applied to the terminology “adaptive cruise
control,” such arguments are unpersuasive since no such terminology
appears in the claims. It is our opinion that Appellant’s arguments
improperly attempt to narrow the scope of the claim by implicitly adding
disclosed limitations which have no basis in the claim. See In re Morris,
127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027-28 (Fed. Cir. 1997).
Further, aside from the fact that the terminology actually used in the
claims, i.e., “adaptive speed control,” appears only in the claim preamble as
an intended use, we fail to see how the speed control system of Minowa,
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