Appeal 2006-2855 Application 09/774,727 Claims 1-20 are rejected under 35 U.S.C § 103(a) as unpatentable over Lang in view of Coueignoux.3 Rather than repeat the arguments of Appellant or the Examiner, we refer to the Briefs and the Answer for their respective details. In this decision, we have considered only those arguments actually made by Appellant. Arguments which Appellant 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). OPINION It is our view, after consideration of the record before us, that the evidence relied upon and the level of skill in the particular art would have suggested to one of ordinary skill in the art the invention set forth in the claims on appeal. Accordingly, we affirm. 3 Although the Examiner discusses two additional references, Schuba and Lambert, in the text of the rejection based on Lang and Coueignoux (Answer 5), the Examiner nonetheless indicates that the Schuba and Lambert references are “not part of the rejection” (Answer 5, 19). Nevertheless, Appellant presented arguments pertaining to these references (Br. 11-12; Reply Br. 6-7). In any event, since the Schuba and Lambert references were not included in the statement of any of the rejections of the claims, they are deemed to be superfluous and therefore not before us. Consequently, we have not considered the disclosure or teachings of Schuba and Lambert in this decision. See In re Hoch, 428, F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970) ("Where a reference is relied upon to support a rejection, whether or not in a 'minor capacity,' there would appear to be no excuse for not positively including the reference in the statement of the rejection."). 3Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: September 9, 2013