Appeal 2006-2536
Application 10/611,127
Burton's modifying of the preferred path assignment is analogous to the
claimed enabling step. . . ." (Br. 7.) Just as "[i]t is not the function of [the
U.S. Court of Appeals for the Federal Circuit] to examine the claims in
greater detail than argued by an appellant, looking for nonobvious
distinctions over the prior art," In re Baxter Travenol Labs., 952 F.2d 388,
391, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991), it is not the function of this
Board to examine the representative claim in greater detail than argued by
the Appellants, looking for distinctions over the prior art.3 Therefore, we
affirm the rejection of claim 7 and of claims 8 and 9, which fall therewith.
VI. ORDER
In summary, the rejection of claims 1-9 under § 102(e) is 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 presented to the Board.")
3 The Appellants also reiterate their prior argument regarding whether
Burton responds to the situation wherein two requesters have access only to
different ones of an active-passive pair of storage controllers by selecting
any one of the controllers as an active controller. (Br. 7.) We addressed this
argument in the preceding issue.
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