Appeal 2007-0062
Application 10/706,797
1 Rohm & Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092, 44 USPQ2d
2 1459, 1462 (Fed. Cir. 1997) (Nothing in the rules or in jurisprudence
3 requires trier of fact to credit unsupported or conclusory assertions).
4 Moreover, and as pointed out by the Examiner (FF 9), Applicants’
5 argument is not persuasive. Claim 48 requires that the finger assemblies
6 move up, over, and down over the top edges of the bag during the delivery
7 step. The step of the gripper assembly moving laterally to withdraw the bag
8 from below the hopper is the only movement identified by Applicants that
9 occurs during the delivery step. The subsequent movement upwardly into
10 position for the next bag is done after the previous bag has been delivered to
11 the sealing apparatus, and is not part of the delivery step. For these reasons,
12 we sustain the Examiner’s rejection of claim 48.
13 Since we have determined that Applicants do not have written
14 description support for “the steps of providing a pair of finger assemblies
15 and moving the finger assemblies up, over, and down over the top edges of
16 the bag,” we need not determine whether the other terms that the Examiner
17 has identified as lacking written description support for claim 48 are not
18 supported. Moreover, we need not decide whether the rejection of claims
19 49-51, which depend from claim 48, should be sustained on the basis that
20 certain claim terms of those claims lack written description support. Claims
21 49-51 stand or fall together with claim 48, and as claim 48 lacks written
22 descriptive support, so do claims 49-51. For these reasons, the Examiner’s
23 rejection of claims 48-51 is sustained.
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