Appeal 2007-0278
Application 10/042,047
In response, we note that a “single web page” is not recited within any
of independent claims 19, 27, and 35 (and associated dependent claims). In
contrast, independent claims 19, 27, and 35 each recite “web page content.”
Because a “single web page” is not equivalent to “web page content” (which
could refer to any content within a single web page, such as a discrete
image, icon, URL link, or text section), we find that Appellants are arguing
limitations that are not claimed. We note that patentability is based upon the
claims. “It is the claims that measure the invention.” SRI Int’l v. Matsushita
Elec. Corp. of America, 775 F.2d 1107, 1121, 227 USPQ 577, 585 (Fed. Cir.
1985) (en banc). We further note that arguments which Appellants could
have made but chose not to make in the Brief 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).
Therefore, we find that Appellants have not shown the Examiner erred in
rejecting representative claim 19 based on anticipation. Accordingly, we
will sustain the Examiner’s rejection of representative claim 19 as being
anticipated by Shamoon.
Pursuant to 37 C.F.R. § 41.37(c)(1)(vii), we have decided the appeal
with respect to the claims 20, 25-28, 35, and 36 on the basis of the selected
representative claim alone. Therefore, we will sustain the Examiner’s
rejection of these claims as being anticipated by Shamoon for the same
reasons discussed supra with respect to representative claim 19.
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