Appeal No. 2006-0376
Application No. 09/971,866
burner is vertically and horizontally adjustable. With respect to claim 11 the
examiner has found the support frame (G2) as supporting a cooking utensil.
With regard to claim 18, the examiner has found that in light of Harneit, it would
have been obvious to provide covers over the grill. In the absence of appellant
presenting evidence or arguments to rebut the examiner’s findings we consider
the examiner to have established a prima facie case of obviousness.
Conclusion
Only those arguments actually made by appellant have been considered
in this decision. Arguments which appellant could have made but chose not to
make in the brief or by filing a reply brief have not been considered and are
deemed waived by appellants (see 37 CFR § 41.37(c)(vii)). Support for this rule
has been demonstrated by our reviewing court in In re Berger, 279 F.3d 975,
984, 61 USPQ2d 1523, 1528-1529 (Fed. Cir. 2002) wherein the Federal Circuit
stated that because the appellant did not contest the merits of the rejections in
his brief to the Federal Circuit, the issue is waived. See also In re Watts, 354
F.3d 1362, 1368, 69 USPQ2d 1453, 1458 (Fed. Cir. 2004).
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