In re Ernst, 59 C.C.P.A. 970

59 C.C.P.A. 970 | C.C.P.A. | 1972

Pek Curiam:

Appellant’s petition for rehearing is granted only to the extent of changing the language of the original opinion dated December 30, 1971, 59 CCPA 966,451 F. 2d 1404,172 USPQ 236, by substituting the following paragraph for the one bridging pages 7 and 8 of the opinion (last paragraph, column 1, page 238 USPQ; last paragraph, column 2, page 1406 F.2d) :

At oral argument appellant alleged that claims 2, 4-5, 23, and 27-29 further distinguish over the prior art since they call for (in varying degrees of specificity) sterilizing gas mixtures, including ethylene oxide mixtures and fluorocarbon mixtures. After reviewing the record on appeal, we cannot find any indication that appellant argued before the board that there was any patentable significance to that feature, nor was such an argument presented in appellant’s brief. As we said in In re Touvay, 58 CCPA 809, 811, 435 F. 2d 1344, 168 USPQ 357, 359 (1971), “Ordinarily we do not consider arguments directed to the significance of particular limitation at this late stage unless they were raised below.” We see no reason to deviate from'that rule here.