Appeal No. 2005-1147 7
Application No. 09/834,440
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 appellants have been considered in this
decision. Arguments which appellants could have made but chose
not to make in the brief have not been considered and are deemed
to be waived [see 37 CFR § 41.37(c)(1)(vii)(2004)].
The examiner has indicated how he finds the claimed
invention to be unpatentable over the teachings of Mills or Mills
in view of Skates [answer, pages 5-7]. The examiner’s analysis
is sufficiently complete and logical to establish a prima facie
case of obviousness. Appellants make the same arguments with
respect to Mills that we discussed above. Appellants also argue
that Mills does not teach the division of the population of human
subjects into two sub-populations, but Skates was cited to
provide that teaching [brief, pages 8-10]. The examiner responds
that Skates makes up for the lack of teachings in Mills and that
all of appellants’ arguments were addressed in the rejection
under 35 U.S.C. § 102 [answer, pages 9-11].
We will sustain the examiner’s rejection of claims 5, 8, 13
and 15 for the reasons argued by the examiner in the answer. All
of appellants’ arguments with respect to this rejection have been
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