Appeal No. 2006-1963
Application No. 09/951,321
information made available prior to the test. We find that Lee’ step of initially displaying
the training materials, meets the claimed “presenting training materials” and Lee’s
teaching of displaying materials related to the questions answered incorrectly to meet the
appellant’s claimed step of “displaying said training materials.” Thus, appellant’s
arguments have not persuaded us of error in the examiner’s rejection and we find ample
evidence to support the examiner’s rejection of claim 38 and the claims dependent
thereupon, claims 39 through 47. Accordingly, we will sustain the examiner’s rejection
of claims 38 through 47 under 35 U.S.C. §103.
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)(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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