In re Gamble

In re Gamble The Federal Circuit affirmed the Board's affirmance of the examiner's § 112(b) indefiniteness rejections of claims 1-8, 10, 13-15, and 18 of the '077 application, and the Board's denial of rehearing on newly rejected claims 9, 11, 12, 16, 17, 19, and 20. Mr. Gamble forfeited any substantive indefiniteness argument both before the Board and in his opening brief on appeal. Applicants who do not contest a ground of rejection in the Board appeal brief, or who raise no meaningful argument in the opening brief at the Federal Circuit, should expect forfeiture, and a cursory rehearing request cannot rescue dependent claims newly rejected by the Board. Affirmed. The examiner rejected claims as indefinite for insufficient antecedent basis. Mr. Gamble amended some claims but did not address the remaining rejections, which were repeated in the final action. His Board appeal brief offered no argument on the § 112(b) rejections, saying only that the errors would be corrected. The Board summarily sustained the rejections as waived or forfeited and newly rejected claims 9, 11, 12, 16, 17, 19, and 20 as inheriting the same deficiency. His rehearing request argued the merits for the first time, and the Board refused to consider those arguments. As to the newly rejected claims, it contained only a conclusory statement that they no longer inherit indefiniteness. Held: arguments first made in the reply brief are forfeited, citing Gamble I and McIntosh. The Board did not abuse its discretion in finding forfeiture, and the cryptic rehearing statement did not raise arguments on the newly rejected claims. § 112(b) waiver / forfeiture non-precedential § 112(b) waiver / forfeiture non-precedential waiver / forfeiture § 112(b)