Appeal No. 2004-0522
Application No. 09/678,045
certain claims to stand or fall with argued claims when the
merits of those certain claims has not been separately argued.
See In re Dance, 160 F.3d 1339, 1340 n.2, 48 USPQ2d 1635, 1636
n.2 (Fed. Cir. 1998). It follows that the treatment given
appellants’ claims in our underlying decision was appropriate
based upon appellants’ own choice to only mention the content of
certain claims and not to specifically argue the merits thereof
relative to applied prior art. Thus, in this request for
rehearing (pages 3 through 7), appellants’ viewpoint that we did
not comply with settled procedure and law is unsound.
Claim 27
Claim 27, dependent from claim 1, was rejected by the
examiner along with independent claims 10 through 15 and 18
through 23.1 Claim 27 was one of those claims which appellants
decided to not argue specifically relative to the applied prior
art, but only to mention the content thereof (brief, page 31).
1 On page 9 of our decision, as to claims 11, 12, 14, 15,
and 27, the statement should have read that “we sustain the
rejection of these claims since they are considered to stand or
fall with claim 10" --and claim 1, respectively--. This omission
is considered to be a minor informality and clearly does not
substantively alter our underlying decision.
3
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