Appeal 2006-2352
Application 10/065,436
§ 103. In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658; In re
Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980); In re Best,
562 F.2d 1252, 1254-55, 195 USPQ 430, 433 (CCPA 1977).
Arguments not made in the Briefs are considered to be waived. See
37 C.F.R. § 41.37(c)(vii) (2006).
ANALYSIS
As we noted above, representative claim 2 employs “consisting
essentially of” transistional phrasing. Our review of the record reveals,
however, that Appellants have not specifically pointed to any persuasive
evidence establishing that the use of sulfonate pore-formers with or without
the retention of some of the pore-former with the filaments, as taught by
Shiozaki, would detrimentally affect the basic and novel characteristics of
Appellants’ invention. Consequently, Appellants’ unsupported arguments in
the Brief fall significantly short of establishing that the “consisting
essentially of” transistional phrase of representative claim 2 requires
exclusion of a hollow PET-containing filament prepared using sulfonate
pore-formers as described by Shiozaki.
Appellants refer to the four corners of the claim and MPEP
§ 2163(II)(A)(1) in the Brief (Br. 5), however, our review of representative
claim 2 reveals no exclusion of the use of the sulfonate pore-formers, as
disclosed by Shiozaki, in manufacturing the claimed filament. To the extent
Appellants’ reference to the four corners of the claim and the cited Section
of the MPEP in the Brief refers to the claim term “polyester,” Appellants
have not articulated in their arguments how that representative claim term
would exclude the use of sulfonate pore-formers in producing the claimed
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