Appeal 2007-2127
Reexamination Control No. 90/006,621
DISCUSSION
ARGUMENTS NOT MADE ARE WAIVED
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(vii)
("Any arguments or authorities not included in the brief or a reply brief . . .
will be refused consideration by the Board, unless good cause is shown.");
In re Watts, 354 F.3d 1362, 1367, 69 USPQ2d 1453, 1457 (Fed. Cir. 2004)
("Just as it is important that the PTO in general be barred from raising new
arguments on appeal to justify or support a decision of the Board, it is
important that the applicant challenging a decision not be permitted to raise
arguments on appeal that were not presented to the Board." (Footnote
omitted.)). Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391, 21 USPQ2d
1281, 1285 (Fed. Cir. 1991) ("It is not the function of this court to examine
the claims in greater detail than argued by an appellant, looking for
nonobvious distinctions over the prior art.").
Patent Owner submits declarations by Dr. George T. Ligler and a
declaration by himself, Martin G. Reiffin, and an Appendix of Exhibits. We
consider these declarations and exhibits only to the extent they are argued.
INTRODUCTION
Patent Owner filed an application in 1982 to a computer system for
writing and compiling computer programs. See Reiffin v. Microsoft Corp.,
214 F.3d at 1344, 54 USPQ2d at 1916, quoted supra. In 1985, Patent
Owner filed an application stated to be a continuation-in-part of the 1982
application and having the same specification and drawings, but adding a
computer program appendix. In 1990, Patent Owner filed an application
stated to be a continuation-in-part of the 1982 application (later amended to
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