Ex Parte Bartlett et al - Page 11

                 Appeal 2006-2536                                                                                         
                 Application 10/611,127                                                                                   
                 Burton's modifying of the preferred path assignment is analogous to the                                  
                 claimed enabling step. . . ."  (Br. 7.)  Just as "[i]t is not the function of [the                       
                 U.S. Court of Appeals for the Federal Circuit] to examine the claims in                                  
                 greater detail than argued by an appellant, looking for nonobvious                                       
                 distinctions over the prior art," In re Baxter Travenol Labs., 952 F.2d 388,                             
                 391, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991), it is not the function of this                               
                 Board to examine the representative claim in greater detail than argued by                               
                 the Appellants, looking for distinctions over the prior art.3  Therefore, we                             
                 affirm the rejection of claim 7 and of claims 8 and 9, which fall therewith.                             
                                                                                                                         
                                                      VI. ORDER                                                           
                         In summary, the rejection of claims 1-9 under § 102(e) is affirmed.                              

                         "Any arguments or authorities not included in the brief or a reply brief                         
                 filed pursuant to [37 C.F.R.] § 41.41 will be refused consideration by the                               
                 Board, unless good cause is shown."  37 C.F.R. § 41.37(c)(1)(vii).                                       
                 Accordingly, our affirmance is based only on the arguments made in the                                   
                 briefs.  Any arguments or authorities omitted therefrom are neither before us                            
                 nor at issue but are considered waived.  Cf. In re Watts, 354 F.3d 1362,                                 
                 1367, 69 USPQ2d 1453, 1457 (Fed. Cir. 2004) ("[I]t is important that the                                 
                 applicant challenging a decision not be permitted to raise arguments on                                  
                 appeal that were not presented to the Board.")                                                           
                                                                                                                         
                 3 The Appellants also reiterate their prior argument regarding whether                                   
                 Burton responds to the situation wherein two requesters have access only to                              
                 different ones of an active-passive pair of storage controllers by selecting                             
                 any one of the controllers as an active controller. (Br. 7.)  We addressed this                          
                 argument in the preceding issue.                                                                         
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