Appeal No. 2001-2406
Application 09/307,445
It is our view, after consideration of the record before
us, that the evidence relied upon and the level of 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 1-5. Accordingly, we reverse.
Appellant has nominally indicated that for purposes of
this appeal the claims stand and fall separately because each of
dependent claims 2-5 can be rewritten separately as an
independent claim [brief, page 5]. The fact that dependent
claims can be rewritten separately as independent claims does not
constitute an argument in support of separate patentability. In
order to have a claim considered separately for patentability,
substantive arguments must be presented as to why the limitations
of that claim provide patentability independent of the other
argued claims. Appellant has provided substantive arguments only
with respect to independent claim 1. Accordingly, all the claims
before us will stand or fall together with independent claim 1.
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).
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