Appeal 2007-1200
Application 09/900,251
ISSUE
The issue before us is whether Appellants have shown that the Examiner
erred in rejecting claims 1-40 under 35 U.S.C. § 112, first paragraph, as failing to
comply with the enablement requirement. The dispositive issue is whether the
Examiner met the initial burden of setting forth a reasonable explanation as to why
he believes that the scope of protection provided by claims 1-40 is not adequately
enabled by the description of the invention provided in the specification of the
application.
Rather than repeat the arguments of Appellants and the Examiner, we make
reference to the Brief 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 Brief
have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2004). Except as noted in this opinion, Appellants have not
presented any substantive arguments directed separately to the patentability of the
dependent claims or related claims in each group. In the absence of a separate
argument with respect to those claims, they stand or fall with the representative
independent claim. See 37 C.F.R. § 41.37(c)(1)(vii). See also In re Young, 927
F.2d 588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991).
FINDINGS OF FACT
We find the following enumerated findings to be supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427, 7
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