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.").
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