Appeal No. 2000-1003
Application No. 08/631,465
sheer speculation. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968) (a
section 103 rejection must rest on a factual basis rather than
speculation).
We reach a different conclusion with respect to claims 21
and 33. As an initial matter, it does not appear that these
claims have been separately grouped and argued as required in
order to receive individual consideration pursuant to 37 CFR
§ 1.192(c)(7). See Ex parte Schier, 21 USPQ2d 1016, 1018 (Bd.
Pat. App. & Int. 1991). In this regard, the appellants expressly
state on page 5 of the brief that “claim 21 will stand or fall
with claim 19.”6 As for claim 33, we recognize that page 5 of
the brief contains the statement that “[claim] 33 will stand or
fall separately.” However, pages 18-20 of the brief, which
contain appellants’ arguments concerning the rejection under
review, do not expressly refer to claim 33 (or for that matter to
claim 21). Moreover, the particular claim features, which are
specifically argued in this section of the brief, clearly are not
recited in claim 33 (or in claim 21).
6
6 The appellants’ above quoted reference to claim 19 is
inapt. This is because dependent apparatus claim 21 is
completely unrelated to dependent method claim 19. Presumably,
the appellants meant to state that claim 21 will stand or fall
with claim 20 from which claim 21 depends.
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