Appeal No. 2003-0469
Application No. 09/317,480
rejection of claims 4, 5, 8 and 9 under 35 USC § 103 as being unpatentable over
Yu, Benveniste, Borst and Przelomiec for the reasons stated supra concerning
the rejection of claims 1 and 2 under 35 USC § 103 as being unpatentable over
Yu and Benveniste.
Only those arguments actually made by appellant have been considered
in this decision. Arguments which appellant could have made but chose not to
make in the brief or by filing a reply brief have not been considered and are
deemed waived by appellant [see 37 CFR § 1.192(a)] Support for this rule has
been demonstrated by our reviewing court in In re Berger 279 F3d 975, 984, 61
USPQ2d 1523, 1528-1529 (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. Also see In re Watts
354 F.3d at 1368, 69 USPQ2d at, 1458.
In view of the forgoing, we have sustained the examiner’s rejection of
claims 1 through 9 under 35 USC § 103.
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