Appeal No. 2005-1024 Page 12
Application No. 10/156,291
have enabled one of ordinary skill in the art to make and use a soft aspheric molded
intraocular lens.
After reviewing all of the evidence before us, including the totality of the
appellant's evidence, it is our conclusion that, on balance, the evidence of
nonobviousness fails to outweigh the evidence of obviousness discussed above and,
accordingly, the subject matter of claim 26 would have been obvious to one of ordinary
skill in the art within the meaning of 35 U.S.C. § 103 at the time the appellants’ invention
was made. See Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483, 44
USPQ2d 1181, 1187 (Fed. Cir. 1997). It follows that we shall sustain the rejection of
claim 26 as being unpatentable over Burk, Volk or Koziol in view of Mazzocco. We note
that the appellants have not argued separately the patentability of claims 27 and 28
apart from claim 26. Therefore, claims 27 and 28 shall stand or fall with representative
claim 26 (see In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991);
In re Wood, 582 F.2d 638, 642, 199 USPQ 137, 140 (CCPA 1978)).
CONCLUSION
To summarize, the rejection of claims 26-29 as being anticipated by or
unpatentable over Koeniger is reversed, the rejection of claims 26-28 as being
unpatentable over Burk, Volk or Koziol in view of Schlegel is reversed, and the rejection
of claims 26-28 as being unpatentable over Burk, Volk or Koziol in view of Mazzocco is
sustained. The examiner’s decision is affirmed-in-part.
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