Appeal No. 2001-0372
Application 08/928,242
optical radar system. Appellant has not disputed or argued that
it would not have been obvious to use the known retroreflective
targets in the Endo system, nor has Appellant pointed to any
error made by the Examiner in making this rejection.
Appellant has not made any other arguments as to claims 1
through 3, 9, 10, 12 and 17. 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, 984, 61 USPQ2d 1523, 1528-29
(Fed. Cir. 2002), wherein the Federal Circuit Court stated that
because the Appellant did not contest the merits of the rejection
in his brief to the Federal Circuit court, the issue was waived.
Turning to the rejection of claims 11, 13 and 18 through 20
as being unpatentable under 35 U.S.C. § 103 over Endo and Keene
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