Appeal No. 2001-1427
Application No. 09/107,795
claimed subject matter and the examiner’s explanation as to why it would have been
obvious to do so is not convincing of obviousness with the meaning of 35 U.S.C. § 103.
In order to meet the instant claimed limitations, one would need to modify Stein
by combining Figures 10 and 12 such as to include both power supplies and to make
supply 250 internal to the device while, at the same time, retaining the connection of
power supply 250 to connection 154. There is simply no reason, other than hindsight
gleaned from appellant’s own disclosure, for making such a modification.
Accordingly, we will not sustain the rejection of claims 4, 10 and 13 under 35
U.S.C. § 103.
While it may seem incongruous to do so, although we have reversed the
rejection of claims 4, 10 and 13 under 35 U.S.C. § 103, based on limitations appearing
in their independent claims, we have sustained the rejection of claims 1-3, 5-9, 11, 12,
14 and 15 under 35 U.S.C. § 103 because, for whatever reason, known only to
appellant, appellant has made a conscious effort to specifically not argue these claims,
going so far as to stating the issue on appeal as being solely whether claims 4, 10 and
13 were properly rejected under 35 U.S.C. § 103 (brief-page 3). Arguments not made
are waived. In re Kroekel, 803 F.2d 705, 709, 231 USPQ 640, 642-43 (Fed. Cir. 1986).
Accordingly, the examiner’s decision is affirmed-in-part.
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