Appeal No. 1999-2263
Application 08/581,721
skill in the particular art would not have suggested to one of
ordinary skill in the art the obviousness of the invention as
set forth in claims 1, 5 and 6. Accordingly, we reverse.
Appellant has indicated that for purposes of this
appeal the claims will all stand or fall together as a single
group [brief, page 6]. Consistent with this indication
appellant has 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. John Deere Co., 383 U.S.
1, 17, 148 USPQ 459, 467 (1966), and to provide a reason why
one having ordinary skill in the pertinent art would have been
6
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