Appeal No. 2005-1557
Application 09/954,604
38. A nestable pallet comprising:
a top deck having an upper surface and a peripheral edge including side edges and
corners, and at least one foot member extending downwardly from one of the corners of the top
deck, the at least one foot member having an exterior surface and an interior surface, the exterior
surface having a cutout formed therein, the cutout extending vertically to the upper surface of the
top deck and directed outwardly from the corner of the top deck such that the cutout is
substantially symmetrical about a diagonal extending from a centerpoint of the top deck to the
one corner of the top deck, the cutout defining a projection on the interior surface of the foot
member, wherein the cutout is arranged to receive a corresponding projection of an other [sic,
another] pallet positioned thereabove when in a nested orientation.
The references relied on by the examiner are:
Mathieu 1,408,114 Feb. 28, 1922
Elder et al. (Elder) 5,606,921 Mar. 4, 1997
Bredal et al. (Bredal) 6,234,088 May 22, 2001
(continuation of application 09/101,745, filed Aug. 8,
1996)
The examiner has rejected appealed claims 14 through 18, 20 through 25, 28 through 37,
42 and 43 under 35 U.S.C. § 103(a) as being unpatentable over Bredal in view of Elder (answer,
pages 4-5); and claims 38 through 41 under 35 U.S.C. § 103(a) as being unpatentable over
Bredal as applied to claims 14 through 18, 20 through 25, 28 through 37, 42 and 43, further in
view of Mathieu (answer, page 5).
Appellants state that appealed claims 14 through 18, 20 through 25 and 28 through 37,
42 and 43 “do not stand or fall together” (brief, page 3). With respect to certain of these claims,
appellants point to a claim limitation(s) as distinguishing these claims from other claims, and
make the bare assertion that the prior art does not show, teach or suggest the limitation(s) (id.,
pages 3-4). We find that the assertions are not substantive arguments for separate patentability,
and indeed, none of the claims are so separately argued by appellants (brief, pages 4-5; reply
brief, page 2). Appellants further state that appealed claims 38 through 41 “stand or fall
together.” Thus, we decide this appeal based on appealed claims 14 and 38 as representative of
the respective grounds of rejection. 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 single claim for each group of
claims subject to a common ground of rejection as representative of all claims in that group and
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