Appeal No. 1997-4315
Application No. 08/159,618
earlier Board decision noted that this argument was not timely
made since the issue had not been addressed in the brief.
Appellants note that 37 CFR § 1.193(b)(1) was amended to
permit an appellant to file a reply brief without restriction
to new points of argument. The relevance of this argument is
not understood because appellants filed no reply brief in this
application. The critical question as we view it is the
timeliness of the arguments with respect to the interpretation
of the means plus function language.
Appellants are correct to assert that the examiner has
the responsibility to interpret means plus function language
in the manner required by the sixth paragraph of 35 U.S.C. §
112. Whether or not the examiner successfully complied with
this responsibility, however, is a legal and factual question
which must be argued. When a rejection on appeal is decided
by the Board, arguments not made by appellant in the brief are
not considered and are effectively waived. Appellants’
failure to address the question of claim interpretation in the
brief has deprived us of an opportunity to consider the
examiner’s position with respect to this question. Thus, we
agree with the earlier Board decision that appellants’
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