Appeal No. 2005-0264
Application No. 09/139,298
being unpatentable over Litwak or Muskal in view of Stear and
Stern.1
Appellant groups together claims 1, 4-8, 16 and 18 and
argues claim 19 separately (see page 3 of the principal brief).
Accordingly, with the exception of claim 19, all of the appealed
claims stand or fall together with claim 1.
We have thoroughly reviewed the respective positions
advanced by appellant and the examiner. In so doing, we find
that the examiner’s rejection under § 112, first paragraph is not
well-founded. However, we agree with the examiner that the
claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the
applied prior art. Accordingly, although we will not sustain the
examiner’s § 112 rejection, we will sustain the examiner’s § 103
rejection.
We consider first, the examiner’s rejection of the appealed
claims under § 112, first paragraph. It is the examiner’s
position that the amendatory term “consumer”, which replaced
1The examiner’s statement of the rejection at page 3 of the
answer does not include the Stern patent. However, since the
examiner’s final rejection includes Stern, and appellant has responded
to the rejection including Stern, we will treat the examiner’s
omission of Stern in the statement of the rejection as inadvertent,
harmless error.
3
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