Appeal No. 2002-1710 Page 4
Application No. 09/023,441
• claims 2 and 3
• claim 12.
A. CLAIMS 1 AND 4-11
"[T]o assure separate review by the Board of individual claims within each group
of claims subject to a common ground of rejection, an appellant's brief to the Board
must contain a clear statement for each rejection: (a) asserting that the patentability of
claims within the group of claims subject to this rejection do not stand or fall together,
and (b) identifying which individual claim or claims within the group are separately
patentable and the reasons why the examiner's rejection should not be sustained." In
re McDaniel, 293 F.3d 1379, 1383, 63 USPQ2d 1462, 1465 (Fed. Cir. 2002) (citing 37
C.F.R. §1.192(c)(7)). "If the brief fails to meet either requirement, the Board is free to
select a single claim from each group of claims subject to a common ground of rejection
as representative of all claims in that group and to decide the appeal of that rejection
based solely on the selected representative claim." Id., 63 USPQ2d at 1465.
Here, the appellants stipulate that claims 1, 4, 5, and 7-9 inter alia "stand or fall
together. . . ." (Appeal Br. at 4.) We select claim 1 from the group as representative of
the claims therein. With this representation in mind, rather than reiterate the positions
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