Appeal No. 2006-0798
Application No. 09/828,545
Also, as the examiner has noted, there is a structure that is circular and is a
predetermined distance from the posterior end and projects into the cartridge from the
interior wall, and thus appears to respond fully to the “tab means” limitation of claims 3
and 4. We note that the claim limitation “tab means” has no function modifying it, and
therefore it is not subject to the claim construction requirements of 35 U.S.C. § 112,
sixth paragraph. The plunger is located between this tab means and the anterior end.
We particularly note that neither claim 3 nor claim 4 requires any functional relationship
between the tab means and the plunger, but only a positional relationship met by
Mikkelsen. Accordingly we find that Mikkelsen does anticipate claims 3 and 4 and we
therefore sustain the rejections of claim 3 and 4 under 35 U.S.C. § 102(e).
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
Appellant (see 37 CFR § 41.37(c)(1)(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 was
waived.
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