Appeal No. 1997-1266
Application 08/078,791
claim 21 as the representative claim. The Examiner has
concurred with this grouping as indicated on page 2 of the
Answer. We further note that Appellant has not designated
claims 7 and 24 for either group, nor indicated that they
stand separately. Based on the content of claims 7 and 24,
and that they were not argued separately, we find that claim 7
should be placed in group I, being similar to claims 16 and
17. We further find that claim 24 should be placed in group
II, being similar to claim 21.
ANALOGOUS ART
Appellant argues that DeLanty is not analogous art.
Appellant maintains:
The DeLanty patent is concerned with the art of
determining whether there are flaws in metal tubes
and not sorting metal tubes according to their
composition. DeLanty is not concerned with even
sorting metal tubes, which are non-analogous to
batteries according to their compositions. Instead,
DeLanty is concerned with the non-analogous
procedure of determining whether there are any
defects present in metal tubes all of which have a
substantially identical composition. (Brief-page
9.)
The Examiner responds “DeLanty can be considered
analogous since the claimed invention, the device of TuXuan
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