Appeal No. 2003-0573
Application No. 08/931,125
argument not timely made is an argument waived. Since Appellant
never raised this factual question with the Examiner, we do not
have the benefit of the Examiner’s position on this question of
fact. A new argument advanced in such a manner has not afforded
the Examiner an opportunity to respond to the new argument. It is
a requirement of 37 CFR § 192 that Appellant submits arguments in
the Brief(s) specifying all of the errors made by the Examiner in
the rejection. See Ex Parte Hindersinn, 177 USPO 78, 80 (Bd. App.
1971).
It is further well settled that the failure on the part of an
Appellant to present an argument before the board prior to a
request for rehearing constitutes a waiver of such argument. See
In re Kroekel, 803 F.2d 705, 709, USPQ 640, 642-43 (Fed. Cir.
1986). Consequently, we will not consider this new argument of
fact as a basis for changing our prior decision in this case. We
will offer the comment, however, that it does not appear that the
claim language “. . . first region for sequentially storing parity
information” requires a “dedicated” storage region as asserted by
Appellant in this Request.
In conclusion, based on the foregoing, we have granted
Appellant’s request to the extent that we have reconsidered our
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