Appeal No. 2005-2744
Application No. 09/849,979
Conclusion
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 reply brief have not been considered and are deemed waived
by appellants (see 37 CFR § 41.37(c)(1)(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 stated
that because the appellants did not contest the merits of the rejections in his brief
to the Federal Circuit, the issue is waived. See also In re Watts, 354 F.3d 1362,
1368, 69 USPQ2d 1453, 1458 (Fed. Cir. 2004).
This decision contains a new ground of rejection pursuant to 37 CFR
§ 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12,
2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37 CFR § 41.50(b)
provides "[a] new ground of rejection pursuant to this paragraph shall not be
considered final for judicial review."
37 CFR § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of the
following two options with respect to the new ground of rejection to avoid
termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
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