Appeal No. 2004-1460
Application No. 09/495,217
783 F.2d 1038, 1039-40, 228 USPQ 685, 686 (Fed. Cir. 1986); In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147
(CCPA 1976). 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 have not been
considered and are deemed to be waived by appellant (see 37 CFR
§ 41.37(c)(1)(vii)(2004)).
Since the examiner’s findings with respect to Lindhorst
are incorrect for reasons discussed above, the examiner has
failed to establish a prima facie case of obviousness.
Therefore, we cannot sustain the examiner’s rejection of the
claims based on Lindhorst taken alone.
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