Appeal No. 2003-1971
Application No. 09/489,970
solution as well as a hot phosphoric solution to remove
insulating layers. See DeBoer, column 11, lines 25-40.
Therefore, one of ordinary skill in the art would have had before
him these teachings that would lead him to use a hot phosphoric
solution to remove the silicon nitride spacer as claimed.
Appellants have not made any other arguments as to the
claims. 37 CFR § 1.192(a) states:
Appellants 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]ppellants 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
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 Appellants did not contest the merits of the
rejections in the brief to the Federal Circuit Court, the issue
is waived.
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