Appeal No. 1997-4077
Application No. 08/441,989
claim 1 (see In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d
1525,
1528 (Fed. Cir. 1987)). Likewise, dependent claim 7 has not
been
separately argued by the appellants. Accordingly, claim 7
will be treated as falling with parent claim 1. Thus, it
follows that the rejection of claims 4 and 7 under 35 U.S.C. §
103(a) will also be sustained.
Although our analysis of the prior art is considered from
the standpoint of utilizing Shinohara as the primary
reference, the question of which reference is relied upon as
the primary reference is of no moment since the pertinent
disclosures of both Shinohara and Babuder have been pointed
out to appellants. See In re Bush, 296 F.2d 491, 496, 131
USPQ 263, 267 (CCPA 1961). However, inasmuch as the basic
thrust of our affirmance of the
35 U.S.C. § 103(a) rejection of claims 1, 4 and 7 differs from
the rationale advanced by the examiner for the rejection, we
hereby designate the affirmance of the rejection of claims 1,
4 and 7 to be a new ground of rejection pursuant to 37 CFR
11
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