Appeal No. 2005-0004
Application No. 09/135,230
Opinion
We have carefully considered the subject matter on appeal, the rejections
advanced by the examiner and the evidence of obviousness relied upon by the
examiner as support for the rejections. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellants’ arguments set forth in the brief,1
along with the examiner’s rationale in support of the rejections and arguments in
rebuttal set forth in the examiner’s answer.
With full consideration being given to the subject matter on appeal, the
examiner’s rejections and the arguments of appellants and examiner, for the reasons
stated infra, we will sustain the examiner’s rejection of claims 1 through 8, 21 through
23, 25 through 27, and 38 through 41 under 35 U.S.C. § 103. However, we will not
sustain the examiner’s rejection of claims 42, 44 and 46 under 35 U.S.C. § 103.
At the outset, we note that appellants state, on page 4 of the brief:
For this appeal, claims 1-8, 21-23, 25-27, 38-42, 44 and 46 do not stand or fall
together. Instead, these claims are argues individually in the following argument.
37 C.F.R. § 1.192(c) (7) (July 1, 2003) as amended at 62 Fed. Reg. 53196
(October 10, 1997), which was controlling at the time of appellants filing the brief,
states:
For each ground of rejection which appellant contests and which applies to
a group of two or more claims, the Board shall select a single claim from
the group and shall decide the appeal as to the ground of rejection 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 appellant explains why the claims of the
1 This decision is based upon the Appeal Brief received December 31, 2003 (certified as being
mailed on December 24, 2003, in accordance with 37 C.F.R. § 1.8(a)).
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