Appeal No. 1998-2924
Application NO. 08/276,290
Appellants' arguments only address the non-obviousness of
the individual prior art references. However, "[n]on-
obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings
of a combination of references." In re Merck & Co., Inc., 800
F.2d 1091, 1098-99, 231 USPQ 375, 380. We are not required to
now consider the issue of combinability. As stated, in part,
by Rule 37 CFR § 1.192(a),
The brief . . . must set forth the authorities and
arguments on which appellant will rely to maintain
the appeal. Any arguments or authorities not
included in the brief will be refused consideration
by the Board of Patent Appeals and Interferences,
unless good cause is shown.
37 CFR § 1.192(a), revised, 62 CFR § 53131, Oct. 10, 1997,
effective Dec. 1, 1997. In sum, by failing to argue
combinability in the Brief, Appellants have effectively waived
this argument as a consideration for appeal.
Our reviewing court further states in In re Baxter
Travenol Labs, 952 F.2d 388, 391, 21 USPQ2d 1281, 1285 (Fed.
Cir. 1991), "[i]t is not the function of this court to examine
the claims in greater detail than argued by an appellant,
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