Appeal No. 2006-1930
Application No. 09/976,199
Rejection of claims 8, 9 and 19.
Appellants assert on page 13 of the brief:
It is respectfully asserted that neither Shen Yamazaki, nor Kane, either alone or in
combination, suggests or describes attempting to adjust (adjusting) the luminance
of the OLEDs to the desired luminance, which is a function of time. See the
discussion above, Therefore, even if the combination were proper, although
Appellants believe that it is not, nonetheless, the combination would still fail to
produce the invention as recited in the rejected claims. It is, therefore, respectfully
requested that the rejection of this claim be withdrawn. (Emphasis original).
Appellants’ arguments have not convinced us of error in the examiner’s rejection.
As discussed supra, we find that Shen teaches the desired luminance, which is a function
of time. Accordingly, we sustain the examiner’s rejection of claims 8, 9 and 19 under 35
U.S.C. § 103 (a) as being unpatentable over Shen in view of Yamazaki and Kane.
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 by filing a reply brief have not been considered and are deemed waived by
appellants (see 37 CFR § 41.37(c)(vii)). Support for this 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).
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