Appeal 2006-1127
Application 10/712,970
Norman, of claim 26 under 35 U.S.C. § 103(a) over Norman and of claims
22 and 30 under 35 U.S.C. § 103(a) over Norman in view of Packard.
REJECTION UNDER 35 U.S.C. § 102(b) OVER NORMAN1
Claims 1 through 5, 8, 9, 11, 12, 14 through 17, 19 through 21, 23
through 25, 27 through 29, and 31 through 33 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Norman.
Norman is directed “to a hand-held spray gun having an
interchangeable and disposable cleaning fluid cartridge wherein the gun has
a selector valve for alternatively drawing fluid from the cartridge” (col. 1, ll.
7-10). Figure 1 of Norman shows a spray gun 12 comprising a disposable
cartridge 10 releasably attached thereto (col. 2, ll. 11-12). The liquid from
the cartridge 10 is drawn through inlet port 116 via valve cylinder pin 28
(col. 2, ll. 19-23; col. 4, ll. 1-4). Spray gun 12 includes a rotatable selector
valve 82 that has two passageways, one to allow passage of water through a
1 We note that, for the first time, Appellants advance arguments concerning
claims 4 and 9 on pages 4 and 5 of the Reply Brief that were not presented in
the Brief. According to 37 C.F.R. § 41.37(c)(vii):
Notwithstanding any other provision of this
paragraph, the failure of appellant to separately
argue claims which appellant has grouped together
shall constitute a waiver of any argument that the
Board must consider the patentability of any
grouped claim separately [emphasis added].
In the Brief, claims 4 and 9 were argued together with claims 1-3, 5, 8, 11,
12, and 14-17 (Br. 7-10). Since claims 4 and 9 were not separately argued in
the opening Brief, the arguments raised for the first time in a Reply Brief are
considered waived. Cross Medical Products, Inc. v. Medtronic Sofamor
Danek, Inc., 424 F.3d 1293, 1321 n.3, 76 USPQ2d 1662, 1683 n.3 (Fed. Cir.
2005).
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