Appeal 2007-0439
Application 10/630260
proposed bare deletion of the word “alternatively” changes the meaning of
claim 11, unless there are further changes.2
Claims 1 to 6 and 8 to 12 stand rejected under 35 U.S.C. § 102(b) for
being anticipated by ‘9063.
Appellants contend that the claimed subject matter is not anticipated
by ‘906 because required elements of the claimed subject matter are not
taught by the reference, and for reasons to be discussed more fully below.
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Briefs and the Answer for their respective details.
Only those arguments actually made by Appellants have been considered in
this decision. Arguments which Appellants 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).4
We affirm the rejections in part.
ISSUES
The first issue is whether Appellants have shown that the Examiner
erred in rejecting claim 11 under 35 U.S.C. § 112, 2nd paragraph, for being
2 In the Brief, page 17, as applied to claim 11, there is a hint that the “and”
becomes an “or” when alternatively is deleted.
3 It is noted that claim 7, for which the rejection under 35 U.S.C. § 112
paragraph 2 was withdrawn, is specifically not mentioned in this rejection
under 35 U.S.C. § 102 (b), and was not argued by either party. Claim 7 is
therefore not subject to this appeal.
4 Appellants have not presented any substantive arguments directed
separately to the patentability of the dependent claims or related claims in
each group, except as will be noted in this opinion. In the absence of a
separate argument with respect to those claims, they stand or fall with the
representative independent claim. See In re Young, 927 F.2d 588, 590, 18
USPQ2d 1089, 1091 (Fed. Cir. 1991). See also 37 C.F.R. § 41.37(c)(1)(vii).
4
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