Appeal No. 1998-2671
Application No. 08/480,543
recited in claims 10-11, 13, and 18. We are further of the view,
however, that the evidence relied upon and the level of skill in
the particular art would have suggested to one of ordinary skill
in the art the obviousness of the invention set forth in claims
3, 9-11, 13, and 18. Lastly, we are of the opinion that claims
3, 10-12, and 18 are unpatentable, under the judicially created
doctrine of obviousness-type double patenting, over claims 16-18
of U.S. Patent No. 5,108,951. Accordingly, we affirm.
Appellants indicate (Brief, page 5) that, for purposes of
this appeal, claims 3, 9, 10, and 18 are grouped separately from
claims 11-13. With respect to each of the Examiner’s rejections,
separate arguments for patentability have been provided for
independent claim 10 and dependent claim 11. We will consider
the claims separately only to the extent that separate arguments
are of record in this appeal. Dependent claims 3, 9, 12, 13, and
18 have not been argued separately in the Briefs and,
accordingly, will stand or fall with their base claim. Note In
re King, 801 F.2d 1324, 1325, 231 USPQ 136, 137 (Fed. Cir. 1986);
In re Sernaker, 702 F.2d 989, 991, 217 USPQ 1, 3 (Fed. Cir.
1983). Only those arguments actually made by Appellants have
been considered in this decision. Arguments which Appellants
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