Ex Parte 5694604 et al - Page 15


                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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