Appeal No. 2001-0117
Application No. 08/757,173
answer. Appellants state that "[t]his brief does not argue the
rejection of claim 2 under 35 U.S.C. § 112." See page 3 of the
brief. Furthermore, in fact, Appellants do not argue in the
brief the above rejection of claims 7, 18, 20, 22 and 24.
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 refuesd 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
Appellants 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
rejections in his brief to the Federal Circuit Court, the issue
is waived.
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