Appeal No. 96-2022
Application No. 08/132,943
appeal the claims will stand or fall together as a single
group [brief, page 4]. 37 CFR § 1.192(c)(7) provides that the
“Board shall select a single claim from the group and shall
decide the appeal as to the ground of rejection on the basis
of that claim alone.” Although appellants’ brief is primarily
directed to the patentability of claim 1, we would select
independent claim 6 as the representative claim for the entire
group of claims on appeal before us because we agree with the
examiner that claim 6 is the broadest claim on appeal [answer,
page 11]. Even though we are allowed by rule to consider this
appeal on the merits of the rejection with respect to claim 6
alone, we will also consider the rejection with respect to
independent claims 1 and 2 since all the arguments necessary
to render this decision are of record in this case.
As a general proposition in an appeal involving a
rejection under 35 U.S.C. § 103, an examiner is under a burden
to make out a prima facie case of obviousness. If that burden
is met, the burden of going forward then shifts to the
applicant to overcome the prima facie case with argument
and/or evidence. Obviousness is then determined on the basis
of the evidence as a whole and the relative persuasiveness of
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