Appeal No. 96-0499
Application 07/891,671
We have carefully considered the subject matter on appeal, the
rejection advanced by the examiner and the evidence of obviousness relied upon
by the examiner as support for the rejection. We have, likewise, reviewed and
taken into consideration, in reaching our decision, the appellant’s arguments
set forth in the briefs along with the examiner’s rationale in support of the
rejection and arguments in rebuttal set forth in the examiner’s answer.
It is our view, after consideration of the record before us, that the
evidence relied upon and the level of 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 13, 15-18, 21 and 23-27. 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). Accordingly, we will only consider the rejection against independent
claim 13 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
3
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