Appeal 2007-0967
Application 10/367,001
Our consideration of the issues on appeal focuses on independent
claim 29 as representative of that claim and independent claim 38. No
arguments are presented before us as to the actual features recited in
dependent claims 30 and 39 since Appellant’s positions at page 5 of the
principal Brief on appeal argue for patentability of these dependent claims
based upon the patentability alleged for their parent independent claims.
At the outset, to the extent the Brief and Reply Brief allege that the
Examiner has not set forth in the Final Rejection details of the Examiner’s
reliance upon Bouve, this position is misplaced. The Final Rejection mailed
April 8, 2005, rejected all pending claims at that time, including claims 17
through 30, 32, 33, and 35 through 39 as being obvious within 35 U.S.C. §
103 over the combined teachings of Bellesfield in view of Bouve, the same
rejection of the present claims on appeal. On the one hand, Appellant
alleges at the top of page 3 of the principal Brief on appeal, “that although
the Bouve patent was cited against independent claims 29 and 38 in the Final
Office Action of April 8, 2005, no specific reference to the Bouve patent
was provided”. Appellant wrongly asserts at page 3 of the Reply Brief that
“the Bouve patent, which was not cited in reference to independent claims
29 and 38 in . . . the Final Office Action.” In fact, the Examiner’s Final
Rejection at pages 3 through 5 makes detailed references to Bouve, the
reliance upon which was discussed in details at pages 4 through 6 of the
after Final communication received on July 7, 2005.
Appellant’s arguments in the Brief and Reply Brief focus only on the
generating clause of representative independent claim 29, reproduced earlier.
Not only do the positions set forth by Appellant in the principal and Reply
Brief not argue before us that the references are not properly combinable
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