Appeal No. 2005-0778
Application No. 09/867,587
Rather than reiterate the conflicting viewpoints advanced by the examiner and
appellants regarding the above-noted rejections, we make reference to the answer
(mailed July 28, 2004) for the examiner's reasoning in support of the rejections, and to
the brief (filed May, 3, 2004) and to the reply brief (filed September 28, 2004) for
appellants’ arguments thereagainst. We note that appellants attempted to amend the
claims at the time when the reply brief was filed to cancel various claims and amend
others to be in independent form. The examiner denied entry of that amendment.
Therefore, we will address the claims in their form at the time of the filing of the brief.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
appellants’ specification and claims, to the applied prior art references, and to the
respective positions articulated by appellants and the examiner. As a consequence of
our review, we make the determinations which follow.
Appellants have elected to group the claims into numerous separate groupings
and the examiner disagrees with appellants’ groupings. Therefore, we will select a
single claim from each group, which appellants have set forth separate arguments for
patentability, as the representative claim. Only those arguments actually made by
appellants have been considered in this decision. Arguments that appellants could
have made but chose not to make in the brief have not been considered. We deem
such arguments to be waived by appellants [see 37 CFR § 41.37(c)(1)(vii) effective
September 13, 2004 replacing 37 CFR § 1.192(a)]. We will consider the appealed
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