Appeal No. 2001-2627
Application No. 09/472,658
through 33 under 35 U.S.C. § 103 as being unpatentable over
Fernandez-Holmann.
In regard to the rejection of claim 23 under 35 U.S.C. § 103
as being unpatentable over Fernandez-Holmann and Simpson, we note
that Appellant has not made an argument to this claim.
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 [A]ppellant 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
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