Appeal No. 2005-1558
Application No. 09/949,704
naturally-occurring marine bacteria while the sensory characteristics of raw shellfish are
retained (Brief, unnumbered page 2).1 Appellants states that every claim is believed to
be “separately patentable” (Brief, unnumbered pages 3-4). However, appellant merely
recites the limitations of each claim and states that the “cited prior art fails to disclose”
these limitations. Without more specificity, we determine that appellant has not
complied with 37 CFR § 1.192(c)(7)(2003)(“[m]erely pointing out differences in what the
claims cover is not an argument as to why the claims are separately patentable”), and
thus the claims stand or fall together. Accordingly, we select claim 5 from the grouping
of claims and decide the ground of rejection in this appeal on the basis of this claim
alone. See In re McDaniel, 293 F.3d 1379, 1382-83, 63 USPQ2d 1462, 1464 (Fed. Cir.
2002). Representative independent claim 5 is reproduced below:
A post-pressurized raw shellfish that is pressure-shucked and free from
pathogenic naturally-occurring marine bacteria and which has undergone
treatment by exposing said raw shellfish to pressure of about between 20,000
p.s.i. and 50,000 p.s.i, said raw shellfish retaining sensory characteristic of raw
product.
1We refer to and cite from the Substitute Brief dated June 13, 2003.
2
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