Appeal No. 2004-0650 4
Application No. 09/894,265
rationale in support of the rejection and arguments in rebuttal set
forth in the Examiner’s Answer. It is our view, after
consideration of the record before us, that the evidence relied
upon and the level of skill in the particular art would have
suggested to one of ordinary skill in the art the obviousness of
the invention as set forth in claims 1-7 and 10-13. Accordingly,
we affirm.
Appellants indicate (Brief, page 3) that the claims on appeal
stand or fall together as a group. Consistent with this
indication, Appellants’ arguments are directed solely to features
which are set forth in independent claim 1. Accordingly, we will
select independent claim 1 as the representative claim for all the
claims on appeal, and claims 2-7 and 10-13 will stand or fall with
claim 1. 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 Briefs have not been
considered and are deemed waived [see 37 CFR § 41.37(c)(1)(vii)].
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
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