Ex Parte MASSINGILL et al - Page 3




             Appeal No. 2003-0506                                                              Page 3                
             Application No. 09/264,766                                                                              


                    Claims 1-14 and 17-45 stand rejected under 35 U.S.C. § 103(a) as obvious over                    
             U.S. Patent No. 5,594,776 ("Dent") and U.S. Patent No.  5,644,568 ("Ayerst").                           
             Claims 15 and 16 stand rejected under § 103(a) as obvious over Dent; Ayerst; and U.S.                   
             Patent No. 5,822,310 ("Chennakeshu").                                                                   


                                                     OPINION                                                         
                    "[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) (2001)).  "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, "[i]ndependent [c]laims 1, 17, 23, 33, and 36                    
             (Group I) may be considered as standing or falling together."  (Appeal Br. at 3.)                       








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