Appeal No. 2005-0567
Application 10/280,391
The references relied on by the examiner are:
Stalker 3,758,347 Sep. 11, 1973
Sekino et al. (Sekino) 3,865,581 Feb. 11, 1975
Fried 4,820,124 Apr. 11, 1989
Hummel 5,711,474 Jan. 27, 1998
The examiner has advanced the following grounds of rejection on appeal:
claims 1 through 4, 12, 15 and 16 stand provisionally rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claims 1 through 17 of
copending application 09/687,424 (answer, page 3);
claims 1 through 6 and 8 through 10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sekino (answer, pages 3-6);
claims 7 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Sekino as applied
to claim 6 above, and further in view of Stalker (answer, page 6);
claim 11 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Sekino as applied
to claim 6 above, and further in view of Fried (answer, page 7); and
claims 12 through 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sekino
as applied to claims 1 through 6 and 8 through 10 above, and further in view of Hummel
(answer, pages 7-8).
According to the official electronic records of the USPTO, application 09/687,424 has
not been refiled and was assigned the status of abandoned on March 25, 2005. Accordingly, the
provisional rejection under the judicially created doctrine of obviousness-type double patenting
is moot.
Appellants state with respect to the remaining grounds of rejection that the appealed
claims “do not stand or fall together except as stated next” (brief, page 4). The examiner states
that the claims “stand or fall together” because the brief does not provide supporting reasons
(answer, page 2). We find that appellants have presented certain arguments with respect to
claims 1 through 5, 7 through 12 and 15. We find that appellants merely point to the limitations
of claims 13, 14 and 16 which does not constitute argument for separate patentability of these
claims. Thus, we decide this appeal based on appealed claims 1, 6, 7, 11 and 12 as
representative of the grounds of rejection and of claims 2 through 5 and 8 through 10 and 15 to
the extent that the patentability thereof is argued by appellants. 37 CFR § 1.192(c)(7) (2003);
see In re McDaniel, 293 F.3d 1379, 1383, 63 USPQ2d 1462, 1465 (Fed. Cir. 2002) (“See 37
CFR 1.192(c)(7) (2001). If the brief fails to meet either requirement, the Board is free to select a
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