Appeal No. 2002-1326
Application 09/152,759
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 1-18. Accordingly, we reverse.
Appellants have indicated that for purposes of this
appeal the claims will all stand or fall together as a single
group [brief, page 4]. Consistent with this indication
appellants have 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,
991, 217 USPQ 1, 3 (Fed. Cir. 1983). Therefore, we will consider
the rejection against independent claim 1 as representative of
all the claims on appeal.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine, 837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
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