Appeal No. 2006-1881
Application 10/145,408
Beginning at page 7 of the reply brief, appellant again relies upon the remarks in
the principal brief on appeal as to the patentability of all claims on appeal. Lastly,
appellant quotes, at the middle of page 7 of the reply brief, certain remarks made by the
examiner at the middle of page 12 of the answer that appellant interprets as a possible
rejection under 35 U.S.C. § 112. In urging that these would constitute a new ground of
rejection, appellant requests that the examiner reopen prosecution to address these
remarks. Since appellant has not argued before us these remarks of the examiner, they
are considered to have been waived. We do understand, however, the examiner’s
remarks at page 12 of the answer because the recited device or low voltage device in
independent claim 39, for example, is only passively recited. This leads to the major
question, perhaps under the second paragraph under 35 U.S.C. § 112, whether this device
is to be considered a part of the claimed invention or not. As we have noted earlier, the
discussion at the bottom of column 9 in the Summary of the Invention in Ker
contemplates additional devices connected to a transmission medium. It goes without
saying that a pad of an integrated circuit is per se bi-directional in that it may permit the
bi-directional communication of signals to and from an integrated circuit.
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