Appeal No. 2001-1196
Application No. 09/139,155
refused consideration by the Board of Patent Appeals and
Interferences, unless good cause is shown." See also, In re
Berger, 61 USPQ2d 1523, 1529 (Fed. Cir. 2002) and Interactive
Gift Express, Inc. v. Compuserve, 256 F.3d 1323, 1344, 59 USPQ2d
1401, 1417 (Fed. Cir. 2001), in which the Federal Circuit held
that issues not raised in the Brief are waived. Under current
practice, the examiner is unable to respond to arguments made in
the Reply Brief and would thereby be prejudiced if we were to
consider arguments raised for the first time in the Reply Brief.
Accordingly, we will not consider the arguments raised in the
Reply Brief for the dependent claims and will treat the claims as
a single group, with claim 1 as representative.
We have carefully considered the claims, the applied prior
art references, and the respective positions articulated by
appellants and the examiner. As a consequence of our review, we
will affirm the obviousness rejection of claims 1 through 3, 6
through 10, and 13 through 15 and reverse the obviousness
rejection of claims 4, 5, 11, and 12. We also will enter a new
ground of rejection as to claims 4, 5, 11, and 12.
Appellants argue (Brief, page 5) that the references fail to
teach or suggest the claimed invention. Specifically, appellants
assert that "Stutz does not even include an adapting member" and
4
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