Appeal No. 2005-0052
Application No. 09/192,014
particular art would have suggested to one of ordinary skill in
the art the invention as set forth in claims 1-6, 11, 14, and 15.
Accordingly, we affirm.
Appellants’ arguments in response to the Examiner’s
rejection of the appealed claims are organized according to a
suggested grouping of claims indicated at page 6 of the Brief.
We will consider the appealed claims separately only to the
extent separate arguments for patentability are presented. Any
dependent claim not separately argued will stand or fall with its
base claim. 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
Brief have not been considered and are deemed to be 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 of going forward then shifts to Appellants to overcome the
prima facie case with argument and/or evidence. Obviousness is
then determined on the basis of the evidence as a whole and the
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