Appeal No. 97-0178
Application 08/355,326
extent that appellant has properly argued the reasons for independent patentability of
specific claims, we will consider such claims individually for patentability. To the extent that
appellant has made no separate arguments with respect to some of the claims, such
claims will stand or fall with the claims from which they depend. Note In re King, 801 F.2d
1324, 1325, 231 U.S.P.Q. 136, 137 (Fed. Cir. 1986); In re Sernaker, 702 F.2d 989, 991,
217 U.S.P.Q. 1, 3 (Fed. Cir. 1983). Appellant separates claims 1 and 2 into a first group;
claims 11, 15, 17 and 19 into a second group; and claims 7, 9, and 24-26 into a third
group which stand or fall together.
The Examiner generally summarizes appellant’s arguments on pages 19-20 of the
answer:
[T]he examiner contends that the underlying question relative to all of these
arguments is whether or not it would have been obvious that an ultraviolet bar
code, its materials, and an appropriate scanner is interchangeable with an
infra-red bar code, its materials and an appropriate scanner as seen in
context with the current claims. (answer at page 19).
We agree with the Examiner concerning the basic underlying issue concerning appellant's
arguments. We have reviewed the references and the Examiner’s line of reasoning
concerning the obviousness of using the infra-red spectrum in place of the ultraviolet
spectrum as disclosed by Fisun. We are in agreement with the line of reasoning set forth
by the Examiner, but we agree with appellant's argument with respect to claim 22.
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