Appeal No. 2005-1636
Application No. 09/726,272
arguments. See Id.; In re Hedges, 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 (see 37 CFR § 41.37(c)(1)(vii)(2004)).
We consider first the rejection of independent claims 37,
49 and 61, which appellant has argued as a single group (brief,
page 7). The examiner has indicated how he finds the claimed
invention to be obvious over the applied prior art (answer, pages
7-9). The examiner essentially finds that Pettitt teaches the
invention of claim 37 except that Pettitt does not specifically
recite implementing his system on a computer network nor
recording a sales record at a server. The examiner cites
Robinson as teaching these features. The examiner finds that it
would have been obvious to the artisan to apply the teachings of
Robinson to the Pettitt system.
Appellant argues that the process taught by Pettitt does
not even begin until the customer already has a copy of the
software, and that Pettitt simply relates to unlocking this
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