Appeal 2007-0345
Application 09/812,417
The Examiner relies on the following prior art reference1 to show
unpatentability:
Lawler US 5,585,838 Dec. 17, 1996
The Examiner’s rejection is as follows:
Claims 1-28 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Lawler.
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Brief and the Answer for their respective details. In this
decision, we have considered only those arguments actually made by
Appellants. 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).
1 The Examiner and Appellants refer to an incorrect patent number, U.S. Pat.
5,822,123, as corresponding to the Lawler reference. See Answer 3
(“Evidence Relied Upon” section and reference to “Lawler ‘123” in Grounds
of Rejection); see also Br. 5, 7. U.S. Pat. 5,822,123 actually refers to the
Davis reference cited in the Examiner’s non-final rejection mailed Sept. 25,
2003. See Non-final Rejection mailed Sept. 25, 2003, at 2; see also PTO-
892 dated Sept. 25, 2003. The Examiner, however, also cites the correct
patent number of the Lawler reference in line 3 of the Grounds of Rejection
section.
Since the arguments and discussion in the Answer and the Brief are directed
to the Lawler reference (US 5,585,838), we presume that the rejection was
based solely on Lawler. Accordingly, our decision is based solely on the
disclosure of Lawler; the Davis reference is therefore not before us.
3
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