Appeal No. 95-2600
Application 07/990,458
are untimely and will not be considered. Cf. Kaufman Company,
Inc. v. Lantech, Inc., 807 F.2d 970, 973 n.*, 1 USPQ2d 1202,
1204 n.* (Fed. Cir. 1986); McBride v. Merrell Dow and
Pharmaceuticals, Inc., 800 F.2d 1208, 1210-11 (D.C. Cir. 1986)
("We generally will not entertain arguments omitted from an
appellant's opening brief and raised initially in his reply
brief. . . . Considering an argument advanced for the first
time in a reply brief, then, is not only unfair to an appellee,
. . . but also entails the risk of an improvident or ill-advised
opinion on the legal issues tendered."). Appellant elected to
have claims 2, 3, 5-7, 9, 10, and 14 stand or fall with claim 1
and to have claim 13 stand or fall with claim 12 by not
presenting separate arguments thereto in the main brief. See
37 CFR § 1.192(c)(5). Appellant cannot allege a new argument as
an excuse to argue claims which were not addressed in the first
place and for which no argument by the examiner was necessary.
New arguments as to claims which were argued in the main
brief are treated in the analysis.
Claims 1, 3, 4, and 14-16
Claims 1, 3, 4, and 14
Section 102(b)
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