Ex parte MARCUS VAYHINGER: appellant wins on claim 9

from Ex parte Ex parte MARCUS VAYHINGER

The examiner did not respond to arguments made about claim 9, and the rejection was reversed as to claim 9:

Representative claim 9 recites a limitation directed to the calibrating
step being a two-point interpolation. Appellant argues the portions of
Amman’s disclosure cited by the Examiner as teaching this feature do not
discuss such a calibration step. Brief 10-11. The Examiner has not
responded to this argument by Appellant, nor is it apparent to us how the
portions of Amman cited in the Examiner’s rejection teach this claimed
feature. Accordingly, we find that the Examiner has not demonstrated how
Amman anticipates this limitation of claim 9 and we will not sustain the
Examiner’s rejection of claim 9.

Separately, from footnote 1:

We note Appellant asserts that this reference is prior art under § 102(b)
based upon the prior publication date of Aug. 4, 2005. As recognized by
Appellant, on page 8 of the Appeal Brief, this issue is not dispositive of the
Appeal. We also note that Aug. 4, 2005 is the publication date of US Patent
Application Publication 2005/016660A1 and not Patent 7,290,434. These are
different documents, the latter typically containing amendments provided in
the course of patent prosecution.