Appeal No. 97-3193
Application 08/467,326
the opening axis and the lengthwise valve axis being parallel.
The single reference of record relied upon by the examiner in support of a rejection
under 35 U.S.C. § 102(b) is:
Erb et al. 4,018,387 Apr. 19, 1977
Claims 1 and 4 stand rejected under 35 U.S.C. § 102(b) as being unpatentable
over Erb. It is the examiner’s position that:
Erb et al. [in Figure 5] shows all [elements] of the basic device
including an upper surface at 49, a lower surface opposite 49, a metal spray
disk 37 with a central opening 47, the opening being frustoconical form
which expands in the flow direction and frustoconically extending from the
upper surface to the lower surface, and the central region being flat. The
disk is capable of being formed by electrical discharge machining.
At the outset, we note that appellants have not argued the appealed claims
separately. Therefore, claims 1 and 4 will stand or fall together in accordance with the
success or failure of the appellants’ arguments. See In re Hellsund, 474 F.2d 1307,
1309-10, 177 USPQ 170, 172 (CCPA 1973); In re Wood, 582 F.2d 638, 642, 199 USPQ
137, 140 (CCPA 1978); and In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528
(Fed. Cir. 1987).
Appellants argue on pages 4 and 5 of the brief that element 37 of Erb is not a
perforated spray disk for a valve. Specifically, appellants assert that
element 37 of the Erb Patent is a cap element for a nebulizer, which is
provided on its side with a liquid inlet 44 for allowing a liquid to enter a liquid
supply chamber 46, which is positioned below a cap element 37. . . . Thus,
3
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