Appeal No. 1999-2069
Application 08/397,639
to as "Br__") and the reply brief (Paper No. 22) (pages referred
to as "RBr__") for Appellants' arguments thereagainst.
OPINION
Claims stand or fall together with claim 1
In the main appeal brief, claims 1-5 are grouped to stand or
fall together (Br5). This means that the patentability of
dependent claims 2-5 is determined by the patentability of
independent claim 1. Appellants presented no arguments regarding
claims 2-5 or the references applied to those claims. In the
reply brief, Appellants argue that claims 1 and 2 do not stand or
fall together and that claim 2 was specifically addressed by
Appellants beginning on page 12 of the April 4, 1997, amendment
(RBr2). Appellants then argue claim 2 and Komaki (RBr2-4). The
Examiner acknowledges that the reply brief has been entered and
considered, but states that no further response is necessary
(Paper No. 23).
"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)
(1998). No explanation for the failure to argue claim 2 in the
brief has been offered. These arguments presented for the first
time in the reply brief are untimely and will not be considered.
Cf. Kaufman Company, Inc. v. Lantech, Inc. , 807 F.2d 970,
973 n.*, 1 USPQ2d 1202, 1204 n.* (Fed. Cir. 1986); McBride v.
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