Appeal No. 1999-2716
Application 08/561,178
skill in the particular art would not have suggested to one of
ordinary skill in the art the obviousness of the invention as
set forth in claims 2-9, 11-18 and 20-22. Accordingly, we
reverse.
Appellant has nominally indicated that for purposes of
this appeal the claims will stand or fall together in the
following two groups: Group I has claims 20-22, 5-9 and 14-18,
and Group II has claims 2-4 and 11-13. Consistent with this
indication appellant has made no separate arguments with
respect to any of the claims within each group. Accordingly,
all the claims within each group will stand or fall together.
Note In re King, 801 F.2d 1324, 1325, 231 USPQ 136, 137 (Fed.
Cir. 1986); In re Sernaker, 702 F.2d 989, 991, 217 USPQ 1, 3
(Fed. Cir. 1983). Therefore, we will consider the rejection
against claims 20 and 2 as representative of all the claims on
appeal.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In
so doing, the examiner is expected to make the factual
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