Appellant fails to make argument in opening brief and loses under Ex parte Borden

A failure to raise an issue in the opening brief was costly to Appellant in Ex parte Bopp.


It is well established that arguments not raised in the opening Brief are deemed waived. Cross Med. Prods. Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1320-21 n.3 (Fed. Cir. 2005). “The reply brief is not an opportunity to make arguments that could have been made during prosecution, but were not. Nor is the reply brief an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner’s rejections, but were not.” Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (Informative).