Appeal No. 2002-2074
Application No. 09/494,965
of ordinary skill. Continental Can Co. v. Monsanto Co., 948 F.2d
1264, 1268, 20 USPQ2d 1746, 1749 (Fed. Cir. 1991). In the
present case, the examiner’s finding that Sweeney’s admittedly
brief description of the compressed air or gas embodiment
inherently meets the claim limitations at issue is reasonable on
its face. Given the role the compressed air or gas plays in the
Sweeney method, i.e., launching ammunition with relatively high
velocity, it is not apparent, nor have the appellants cogently
explained, why a person of ordinary skill in the art would not
recognize this use of compressed air or gas as necessarily
involving the provision of a charge of such compressed fluid and
the rapid release thereof as broadly required by claim 54.
Thus, the appellants’ position that the subject matter
recited in claim 54 distinguishes over Sweeney is not persuasive.
Therefore, we shall sustain the standing 35 U.S.C. § 102(b)
rejection of claim 54 as being anticipated by Sweeney.
We also shall sustain the standing 35 U.S.C. § 102(b)
rejection of dependent claim 55 as being unpatentable over
Sweeney since the appellants have not challenged such with any
reasonable specificity, thereby allowing claim 55 to stand or
fall with parent claim 54 (see In re Nielson, 816 F.2d 1567,
1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987)).
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