Appeal No. 2006-2648 Page 13
Application No. 09/788,387
position. Because one of those alternative insertion points must be selected, we find
that the reference inserts image data in a selected position of a sequence of image
data. Because such insertion is performed responsive to "determi[ing] whether
photographing is performed, i.e., whether the user depresses the shutter of the
operating section 12 to instruct to receive the preview image in the memory 5 (S11),"
(col. 4, ll. 64-67), we further find that Sato inserts image data in a selected position of a
sequence of image data in accordance with a user's instruction when the image is
acquired. Therefore, we affirm the rejection of claim 16.
III. CONCLUSION
In summary, the rejection of claims 1, 4, 7, 8, 12, and 13 under § 102(e) is
affirmed. The rejection of claims 5, 9, 14, and 16 under § 103(a) is also affirmed.
"Any arguments or authorities not included in the brief or a reply brief filed
pursuant to [37 C.F.R.] § 41.41 will be refused consideration by the Board, unless good
cause is shown." 37 C.F.R. § 41.37(c)(1)(vii). Accordingly, our affirmance is based only
on the arguments made in the briefs. Any arguments or authorities omitted therefrom
are neither before us nor at issue but are considered waived. Cf. In re Watts, 354 F.3d
1362, 1367, 69 USPQ2d 1453, 1457 (Fed. Cir. 2004) ("[I]t is important that the applicant
challenging a decision not be permitted to raise arguments on appeal that were not
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