Appeal No. 2006-1748 Παγε 7
Application No. 10/728,375
appellant has not argued the separate patentability of these claims. See In re Nielson,
816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987).
We turn next to the examiner’s rejection of claim 9 under 35 U.S.C. § 103 as
being unpatentable over Sutton and Thomas and further in view of Crowley, Moses or
Waddell. The examiner, recognizing that neither Sutton nor Thomas explicitly discloses
first and second plate portions disposed at an angle between 65 and 85 degrees, relies
on Crowley, Moses or Waddell for this teaching.
We agree with the examiner that as discussed above, Sutton suggest the
modification of the device therein described. In addition, Figure 10 of Sutton is
suggestive of a device having first and second plate portions disposed at an angle
greater than 45 degrees. In addition, each of the references Crowley, Moses and
Waddell discloses that a prying angle between 65 and 85 degrees is a known operative
prying angle. As such, in our opinion, there is ample motivation to provide the device of
Sutton with first and second plate portions disposed at an angle between 65 and 85
degrees.
Appellant argues that the devices of Crowley, Moses and Waddell are elongate
devices that are too cumbersome to place on a key chain and that they do not have a
constant width along the length of the device.
We do not find these arguments persuasive because all of the features of the
secondary reference need not be bodily incorporated into the primary reference (see In
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