Appeal 2006-2998
Application 09/956,524
is discussed in In re Lukach, 442 F.2d 967, 169 USPQ 795 (CCPA 1971).
The facts in the instant case differ from In re Lukach in that the facts before
us support both (1) our determination that Flaugher’s written description
(e.g., the figures) anticipates Appellants’ claims, and (2) our determination
made, supra, regarding the reversal of the 35 U.S.C. § 112, ¶ 1 (written
description) rejection.
In view of the above, we therefore affirm the 35 U.S.C. § 102(b)
rejection of claims 1, 2, 5 through 8, 11 and 12.
III. The 35 U.S.C. § 103 Rejections
The 35 U.S.C. § 103 rejection of claims 3 and 9 as being unpatentable
over Flaugher in view of Pickard and the 35 U.S.C. § 103 rejection of claims
4 and 5 as being unpatentable over Flaugher in view of Woodward are also
affirmed for the reasons discussed above. That is, we note that Appellants
only separately argue claim 1. For example, on page 16 of the Brief,
Appellants state that claims 3 and 9 depend from what are believed to be
allowable base claims and are therefore allowable. Likewise, on page 17 of
the Brief, Appellants state that claims 4 and 10 depend from what are
believed to be allowable base claims.
We therefore also affirm each of these obviousness rejections.
IV. Conclusion
The 35 U.S.C. § 112, ¶ 1 (written description) rejection of claims 1
through 12 is reversed.
The 35 U.S.C. § 102(b) rejection of claims 1, 2, 5 through 8, 11 and
12 as being anticipated by Flaugher is affirmed.
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