Appeal No. 2002-0992
Application No. 09/116,018
OPINION
We have carefully considered the subject matter on appeal, the rejection
advanced by the examiner and the evidence of obviousness relied upon by the
examiner as support for the rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellant’s arguments set forth in the main
brief along with the examiner’s rationale in support of the rejection and arguments in
rebuttal set forth in the examiner’s answer.
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 1-12 and
16. Accordingly, we reverse.
Appellant has indicated that for purposes of this appeal the claims will all stand
or fall together as a single group [brief, page 4]1. Consistent with this indication
appellant has made no separate arguments with respect to any of the claims on appeal.
Accordingly, all the claims before us 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,
1 We note that appellant argued independent claims 9 and 12 for the first time
in the reply brief. Although it does not matter in this particular case, appellant is
advised that we do not consider separate arguments for patentability which are not
included in the main brief. Allowing an appellant to make separate arguments for
patentability for the first time in the reply brief would simply encourage an appellant to
withhold such arguments until the examiner is foreclosed from making a response.
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