Appeal No. 2003-1866
Application 08/839,361
claims 9-12, 32-37, and 40-43. We reach the opposite conclusion
with respect to claims 13-27. Accordingly, we affirm-in-part.
Appellants’ arguments in response to the Examiner’s
rejections of the appealed claims are organized according to a
suggested grouping of claims indicated at page 5 of the Brief.
We will consider the appealed claims separately only to the
extent separate arguments for patentability are presented. Any
dependent claim not separately argued will stand or fall with its
base claim. 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). Only those arguments actually made by
Appellants have been considered in this decision. Arguments
which Appellants could have made but chose not to make in the
Brief have not been considered [see 37 CFR § 1.192(a)].
As a general proposition in an appeal involving a rejection
under 35 U.S.C. § 103, an Examiner is under a burden to make out
a prima facie case of obviousness. If that burden is met, the
burden of going forward then shifts to Appellant to overcome the
prima facie case with argument and/or evidence. Obviousness is
then determined on the basis of the evidence as a whole and the
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