Appeal No. 97-3215
Application 08/619,098
rejection of appellant’s claims 16 through 22, 24 through 26, and 30 through 32 under 35
U.S.C. § 103 as being unpatentable over Huch in view of Hall.
In the request (pages 1 and 2), appellant attributes to this panel of the board “a
finding of obviousness” that is “based on incorrect factual predicates,” citing In re Rouffet,
149 F.3d 1350, 1355, 47 USPQ2d 1453, 1455 (Fed. Cir. 1998). More particularly, after
referring to the “pliable material” of claims 30 and 31 (page 2), appellant argues (page 3)
that in contrast to Huch, the neck tie system of claims 30
and 31 requires pockets to be formed from pliable material, a limitation asserted by
appellant to have been overlooked by this panel of the board (page 5). Appellant also
contends (page 5) that this panel of the board relied upon hindsight to arrive at “the finding
of obviousness of claims 30 and 31."
At this juncture, we point out that an argument advanced for the first time in a
request for reconsideration or rehearing is improper, with the failure to present the
argument prior to submission of the request constituting a waiver of the argument. See Ex
parte Hindersinn, 177 USPQ 78, 80 (Bd. App. 1971) and In re Kroekel, 803 F.2d 705,
709, 231 USPQ 640, 642-643 (Fed. Cir. 1986).
As a reading of the “IX ARGUMENT” section of the appeal brief (Paper No. 15) and
the reply brief (Paper No. 17) clearly reveals, appellant never argued therein the “pliable
material” recitation of claims 30 and 31. The same can be said for the newly presented
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