Appeal No. 2006-0753
Application No. 09/682,010
unexpected results relative to the closest prior art range,
thereby rebutting any prima facie case established by the
examiner. See the Reply Brief, page 2. In support of this
argument, the appellants for the first time refer to Example 1,
as shown by Table 1, at pages 8 and 9 of the specification. Id.
This argument, however, is considered waived since the appellants
fail to raise it in the opening Brief. Cross Med. Prods., Inc.
v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320-21 n.3,
76 USPQ2d 1662, 1683 n.3 (Fed. Cir. 2005)(Arguments not raised
in the opening brief are considered waived.).
To the extent that it is not waived, the appellants have not
demonstrated that the showing referred to is commensurate in
scope with the degree of protection sought by the claims on
appeal. In re Grasselli, 713 F.2d 731, 743, 218 USPQ 769, 778
(Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035, 206 USPQ
289, 296 (CCPA 1980). While the showing is limited to calcining
powder form of HZSM-5 having a Si/Al ratio equal to 21 dispersed
in 400 mg of quartz grains of the same size at an initial
temperature of 350oC for 5 hours under nitrogen or air flow (60
ml/min) and at a second higher temperature for an unknown period
under nitrogen or air flow and then cooling the calcined HZSM-5
7
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