Appeal No. 1999-1765 Page 18
Application No. 08/839,193
We next turn to the examiner’s rejection of claims 1, 10,
11 and 12 under 35 U.S.C. § 103(a) as being unpatentable over
the combined teachings of Nylund and Jabsen.
We have previously indicated that we would sustain the
examiner’s rejection of claim 1 under 35 U.S.C. § 102 as being
anticipated by Nylund or, in the alternative, under 35 U.S.C.
§ 103(a) as being unpatentable over Nylund. Thus, we find the
examiner's use of the Jabsen patent to be mere surplusage and
sustain the § 103(a) rejection of claim 1 on the basis of
Nylund alone, noting again that anticipation or lack of
novelty is the epitome of obviousness. Claims 10 and 11 are
grouped by the appellants with independent claim 1 (brief, p.
4), and are not argued separately from independent claim 1.
Accordingly, we conclude that claims 10 and 11 will fall with
claim 1, from which they depend. See 37 CFR § 1.192(c)(7).
However, we will not sustain the examiner’s rejection of
independent claim 12 as being unpatentable over the combined
teachings of Nylund and Jabsen. Unlike claim 1, which merely
requires a water rod assembly to have the “capability” of
Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
Last modified: November 3, 2007