Appeal No. 2006-2922 Page 5
Application No. 10/012,677
OPINION
We have carefully considered the subject matter on appeal, the
rejections advanced by the examiner and the evidence of obviousness relied
upon by the examiner as support for the rejections. We have, likewise,
reviewed and taken into consideration, in reaching our decision, the
appellants’ arguments set forth in the briefs along with the examiner’s
rationale in support of the rejections and arguments in rebuttal set forth in
the examiner’s answer. 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 briefs have not been considered
and are deemed to be waived. See 37 C.F.R.§ 41.37(c)(1)(vii)(2004). See
also In re Watts, 354 F.3d 1362, 1368, 69 USPQ2d 1453, 1458 (Fed. Cir.
2004).
It is our view, after consideration of the record before us, that the
evidence relied upon by the examiner does not support the examiner’s
rejection of claims 16-22. Accordingly, we reverse.
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
examiner to establish a factual basis to support the legal conclusion of
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