Appeal No. 2005-0549 Page 2
Application No. 09/946,424
at least one attachment point disposed on the test site, which retains the
microsphere in proximity to the test site.
The references relied upon by the examiner are:
Lough et al. (Lough) 5,900,481 May 4, 1999
Köster et al. (Köster) 6,133,436 Oct. 17, 2000
Claims 1-3, 5-10, 14-20, and 28 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Lough and Köster. We affirm.
Discussion
Appellant states that the rejected claims stand or fall together. Appeal Brief,
page 3. Accordingly, we decide the issues raised in this appeal based upon
independent claim 1. See the then existing provisions of 37 CFR § 1.192(c)(7).
In addition, as the examiner noted, Köster is a continuation-in-part of Lough and
contains the same relevant disclosure. Examiner’s Answer, page 14. Since we agree
with the examiner’s conclusion that Lough anticipates claim 1 on appeal, we see no
reason to further burden the record with an analysis of Köster.
We commend the examiner for the thorough explanation of the facts and reasons
relied upon in support of the rejection of the claims based upon Lough as well as the
thorough response to the arguments presented by appellant in the Appeal Brief. We
affirm the examiner’s rejection of claim 1 based upon Lough essentially for the reasons
set forth in the Examiner’s Answer and add the following comments for emphasis.
Anticipation is a question of fact that must be supported by substantial evidence
of record. In re Hyatt, 211 F.3d 1367, 1371, 54 USPQ2d 1664,1667 (Fed. Cir. 2000).
That substantial evidence of record supports the examiner’s decision in rejecting claim 1
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