Appeal No. 2005-0004
Application No. 09/135,230
as is required by each of claims 42, 44 and 46. Accordingly, we will not sustain the
examiner’s rejection of claims 42, 44 and 46.
Only those arguments actually made by appellants have been considered in this
decision. Arguments which appellants 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
appellants (see 37 CFR § 41.37(c)(vii)) Support for this rule has been demonstrated by
our reviewing court in In re Berger 279 F.3d 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. See also In re Watts 354 F.3d 1362, 1368, 69 USPQ2d 1453, 1458 (Fed.
Cir. 2004).
In summary, we sustain the examiner’s rejection of claims 1 through 8, 21
through 23, 25 through 27, and 38 through 41under 35 U.S.C. § 103. However, we will
not sustain the examiner’s rejection of claims 42, 44 and 46 under 35 U.S.C. § 103.
The decision of the examiner is affirmed- in-part.
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