Appeal No. 2001-0727
Application No. 08/215,446
(3) Claims 31 and 32 over McAllister in view of Strater,
(4) Claims 15 and 17-19 over Chandler '232 and Block
in view of Chandler '017 and Wilson.
Although appellant requests at page 4 of the brief that "the
claims be considered individually", the examiner has held that
the appealed claims stand or fall together (see page 2 of
answer). Since appellant has not petitioned this holding of the
examiner, we will consider all the appealed claims to stand or
fall together. See Ex Parte Ohsumi, 21 USPQ2d 1020, 1023 (Bd.
Pat. App. & Int. 1991).
Upon careful consideration of the arguments presented on
appeal, we will not sustain the examiner's rejection under § 112,
second paragraph. However, we will sustain the examiner's
rejections under 35 U.S.C. § 103 to the extent that they are
based upon the McAllister reference.
Regarding the § 112, second paragraph, rejection, although
the examiner's answer does not present a statement of this
rejection, the examiner has responded to appellant's argument by
stating that the examiner would disagree with appellant's
argument that the claim 1 language "less than about" is not
indefinite (see paragraph bridging pages 10 and 11 of answer).
Hence, we will treat the examiner's failure to state the
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