Ex Parte Ganesan et al - Page 24



                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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