Appeal No. 2004-1168
Application 09/884,518
on the basis of that claim alone unless a statement is included that the
claims of the group do not stand or fall together and, in the argument
under paragraph (c)(8) of this section, [A]ppellant explains why the claims
of the group are believed to be separately patentable. Merely pointing out
differences in what the claims cover is not an argument as to why the
claims are separately patentable.
We will, thereby, consider Appellant’s claims 1-6 as standing or falling together
with respect to the rejection under 35 U.S.C. § 102. We will treat claim 1 as a
representative claim of that group. See In re McDaniel, 293 F.3d 1379, 1383, 63
USPQ2d 1462, 1465 (Fed. Cir. 2002) (“If the brief fails to meet either requirement [of 37
CFR § 1.192 (c)(7)], 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.”). See also In re Watts, 354 F.3d 1362, 1367, 69 USPQ2d 1453, 1457 (Fed. Cir.
2004).
Anticipation of a claim under 35 U.S.C. § 102(b) requires that “each and every
element as set forth in the claim is found, either expressly or inherently described, in a
single prior art reference.” In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950
(Fed. Cir. 1999) citing Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631,
2 USPQ2d 1051, 1053 (Fed. Cir. 1987). In addition, our reviewing court states in In re
Zletz, 893 F.2d 319, 321, 13 USPQ 1320, 1322 (Fed. Cir. 1989) that “claims must be
interpreted as broadly as their terms reasonably allow.” Our reviewing court further
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