Appeal No. 95-5032
Application 08/189,276
It is our view, after consideration of the record before us, that the collective 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 as set forth in claims 1-3 and 9-17. We reach the opposite conclusion
with respect to claims 4-8 and 18-22. Accordingly, we affirm-in-part.
Appellants have nominally indicated that the claims do not stand or fall together [brief, page 5],
but they have not specifically argued the limitations of each of the claims. To the extent that appellants
have properly argued the reasons for independent patentability of specific claims, we will consider such
claims individually for patentability. To the extent that appellants have 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 USPQ 136, 137 (Fed. Cir. 1986); In re
Sernaker, 702 F.2d 989, 991, 217 USPQ 1, 3 (Fed. Cir. 1983).
At the outset, before the scope of the claims and the teachings of the references are considered,
an issue has been raised as to whether Figures 3 and 4 of the specification are available as prior art
against these claims on appeal. The examiner’s rejections, as noted above, rely on Figures 3 and 4 as
admitted prior art. Appellants argue that these figures should not be considered as prior art in this case.
The facts are not in dispute.
The specification begins by describing Figures 1-4 in the section entitled “BACKGROUND OF
THE INVENTION.” Figures 1 and 2 are labeled “prior art” and appellants admit that these figures are
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