Appeal 2007-0257
Application 10/047,123
this decision. Arguments which Appellant could have made but chose not to
make in the Brief have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii) (2004).2
We reverse the rejections.
ISSUE
The first issue is whether Appellant has shown that the Examiner
erred in rejecting the claims 9, 10, 21, 22, 33, 34, 45, and 46 under 35 U.S.C.
§ 112, second paragraph. More specifically, the issue concerns whether the
term “in near real time” renders the cited claims indefinite. The second
issue turns on whether the references Butler and Skinner teach the
limitations of claims 1 to 50, and if they do, whether there is a legally
sufficient justification for combining the disclosures.
FINDINGS OF FACT
Rejection 1: Findings with respect to the rejection of claims 9, 10, 21,
22, 33, 34, 45, and 46 under 35 U.S.C. § 112 paragraph 2 for being
indefinite, for failing to particularly point out and distinctly claim the subject
matter which applicant regards as the invention.
1. Examiner contends that the wording “in near real time” in the claims
mentioned above is indefinite. He further states that within a
2 Appellant has not presented any substantive arguments directed separately to the patentability of
the dependent claims or related claims in each group, except as will be noted in this opinion. In
the absence of a separate argument with respect to those claims, they stand or fall with the
representative independent claim. See In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091
(Fed. Cir. 1991). See also 37 C.F.R. § 41.37(c)(1)(vii).
4
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