Appeal No. 2004-1814
Application No. 09/950,969
appellants to rebut the prima facie case of obviousness"
(paragraph two, last sentence). However, appellants now
belatedly come before us and "respectfully request that the
Honorable Board consider the unexpected results which are set
forth in the specification," in particular, at the last paragraph
of page 1 through page 2, first full paragraph (page 2 of
Request, first paragraph). According to appellants, "the
increase in the cloud point of the surfactant system is
unexpected in view of the teachings of Steer" (page 2 of Request,
fourth paragraph). However, it is well settled that the failure
to present an argument before the Board prior to reconsideration
constitutes a waiver of the argument. In re Kroekel, 803 F.2d
705, 709, 231 USPQ 640, 642-43 (Fed. Cir. 1986). See also 37 CFR
§ 1.192(a). Consequently, since appellants' Brief did not
include the argument for unexpected results based upon the
specification, the argument is untimely and will not be now
entertained.
As for the remaining argument in appellants' Request, we
remain of the opinion that appealed claim 1 encompasses gel-form
air freshener compositions comprising no linear alcohol
alkoxylate or amine oxide. The claim language "not more than
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