Appeal No. 2001-0338
Application No. 08/932,953
teaching is just simply an alternate embodiment and does not
teach away from the first embodiment which we pointed out above.
Appellants have not made any other arguments as to claims 5-
7, 9-12, 21 and 23. 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 § 1.117(c) and must set forth the
authorities and arguments on which appellant will reply
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
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 court, the issue is
waived.
B. Rejection of Claims 8, 18, 19 and 22 Under 35 U.S.C. § 103
Claims 8, 18, 19 and 22 stand rejected under 35 U.S.C. § 103
as being unpatentable over Schoolman, Tonosaki and Ninomiya. We
1111
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: November 3, 2007