Appeal No. 2004-0842
Application No. 09/539,454
the present application, stand withdrawn from consideration by
the examiner as being directed to a non-elected invention. See
Answer, page 3.
APPEALED SUBJECT MATTER
The appellants state (Reply Brief, page 3) that:
1. Group 1 - Claims 1-8 and 43-44 may be deemed to
stand or fall together for purposes of this
appeal.
2. Group 2 - Claims 9, 12-17, and 47 may be deemed to
stand or fall together for purposes of this
appeal.
3. Group 3 - Claims 45 and 46 may be deemed to stand
or fall together for purposes of this appeal.
According to In re McDaniel, 293 F.3d 1379, 1384, 63 USPQ2d 1462,
1465-66 (Fed. Cir. 2002), however, 37 CFR § 1.192(c)(7)(2002)
does not give the U.S. Patent and Trademark Office
carte blanche to ignore the distinctions between
separate grounds of rejection and to select the
broadest claim rejected on one ground as a
representative of a separate group of claims subject to
a different ground of rejection.
Therefore, for purposes of this appeal, we select claims 1, 5, 9,
15, 44, 46 and 47 as representing the claims subject to the
different groupings and the different grounds of rejection set
forth in the Answer and limit our discussion thereto consistent
with 37 CFR § 1.192(c)(7) (2002). Claims 1, 5, 9, 15, 44, 46 and
47 are provided below:
2
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