Appeal No. 1999-0568
Application No. 08/447,594
of ordinary skill in the art the obviousness of the
invention as set forth in the claims on appeal.
Accordingly, we reverse.
Despite the two different rejections made by the
examiner, appellants have indicated that for purposes of
this appeal the claims will all stand or fall together as
a single group (brief, page 16). Consistent with this
indication appellants have made no separate arguments
with respect to any of the claims on appeal.
Accordingly, all the claims before us will stand or fall
together. 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). Therefore, we will
consider the rejection against independent claim 1 as
representative of all the claims on appeal.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis
to support the legal conclusion of obviousness. See In
re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed.
Cir. 1988). In so doing, the examiner is expected to
make the factual determinations set forth in Graham v.
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