Appeal No. 1998-1418 Application 08/313,249 of the bottom opening of the pump shaft, thereby preventing the medicant to be introduced therein. With this as our basis, we find that the limitation of “about 2-3 mm” would be a reasonable distance between the pump shaft and the side surface of the vessel, established through routine experimentation. For the above reasons, we will sustain the examiner’s rejection of independent claim 38 on appeal under 35 U.S.C. § 103(a) based on Anthony, Bendig, Takahashi, Dobilas, Junghans, Sukhin and Hughes. In accordance with appellants' grouping of the claims (brief, page 6) and as a result of their failure to argue the patentability of claims 39 and 40 separate from that of independent claim 38, from which they depend, we conclude that claims 39 and 40 will fall with claim 38. Thus, the examiner's rejection of claims 39 and 40 under 35 U.S.C. § 103 will also be sustained. With regard to the examiner’s rejection of claim 46 under 35 U.S.C. § 103(a) as being unpatentable over Anthony, Bendig and Takahashi as applied to claim 1 above, and further in view of Goodman, we note that claim 46 is directed to a method of controlling an ultrasonic inhaler. Claim 46 does not 20Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NextLast modified: November 3, 2007