Appeal No. 2000-0545
Application 08/638,339
Appellant has not made any other arguments. 37 CFR § 1.192 (a) states:
Appellant must, within two months from the date of the notice of appeal under §
1.191 or within the time allowed for reply to the action from which the appeal was
taken, if such time is later, file a brief in triplicate. The brief must be
accompanied by the fee set forth in § 1.17 (c) and 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.
Thus, 37 CFR § 1.192 provides that only the arguments made by Appellant in the brief
will be considered and that failure to make an argument constitutes a waiver on that
particular point. Support for this rule has been demonstrated by our reviewing court in In
re Berger, 279 F.3d 975, 61 USPQ2d 1523 (Fed. Cir. 2002), wherein the Federal Circuit
Court stated that because Appellant did not contest the merits of the rejections in his brief
to the Federal Circuit court, the issue is waived.
We find that Appellant’s claim 1 is properly rejected under 35 U.S.C. § 103. In
view of the foregoing, we will sustain the decision of the Examiner rejecting claims 1
through 29 under 35 U.S.C. § 103. Accordingly, the decision of the Examiner is
affirmed.
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