Appeal No. 2005-1593
Application No. 10/054,647
The prior art reference cited by the examiner is:
Rikihisa et al. (Rikihisa) WO 99/13720 Mar. 25, 1999
Grounds of Rejection Maintained
Claims 1-13 stand rejected under 35 U.S.C. § 102(a), as anticipated by Rikihisa.
DISCUSSION
We find no error in our Decision of December 23, 2005 and therefore, we decline
to grant the relief requested or change our earlier decision in any way.
First, we address the procedural issue raised by appellants. Appellants argue
that the Board is in error for failing to consider claims 10-13 individually. Request for
Reconsideration (Request), page 5. Appellants argue that they “did indeed argue
claims 10-13 separately. See, Reply Brief, pages 16-17.” Request, page 5.
We find no merit in appellants’ argument. Nowhere in the Appeal Brief did
appellants separately argue claims 10-13 with respect to the § 102 rejection over
Rikihisa. See, pages 13-16 of Appeal Brief. According to 37 C.F.R. § 41.37 (2005),
pertaining to the structure and contents of the “Appeal Brief”,
[w]hen multiple claims subject to the same ground of rejection are
argued as a group by appellant, the Board may select a single claim from
the group of claims that are argued together to decide the appeal with
respect to the group of claims as to the ground of rejection on the basis of
the selected claim alone. Notwithstanding any other provision of this
paragraph, the failure of appellant to separately argue claims which
appellant has grouped together shall constitute a waiver of any argument
that the Board must consider the patentability of any grouped claim
separately.
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