Appeal No. 2006-1218
Application No. 10/601,884
evidentiary value in satisfying the Appellants’ burden of
showing that Sellers’ product actually differs from the claimed
product.
Moreover, in the reply brief, Appellants advance arguments
based on the aforementioned declaration and attached handout
that were not presented in the appeal brief. For example,
Appellants argue, inter alia, that the declaration and handout
show that Sellers’ LiF sintering aid is trapped in pores, and
that Appellants obtain a non-exaggerated grain size. We will not
consider such arguments for two reasons. First, they are
unacceptably based on the non-entered declaration. Second,
arguments not made in the opening brief and thus 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, 1320-1321 n.3, 76 USPQ2d 1662, 1683 n.3 (Fed.
Cir. 2005).
In summary, the Examiner has established a reasonable basis
in fact in support of his finding that the product disclosed by
Sellers is identical to the product claimed by Appellants, and
Appellants have failed to carry their burden of proving that
patentee ’s product does not necessarily or inherently possess
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