Appeal 2007-2028
Application 11/058,147
a size range that overlaps with the claimed range. We therefore agree with
the Examiner that Benjamin suggests the claimed size range.
To summarize, because Benjamin suggests a composition having the
claimed particles in the claimed particle size range, we agree with the
Examiner that one of ordinary skill would have considered claim 1 obvious
over Benjamin. We therefore affirm the Examiner’s obviousness rejection
of claim 1 over Benjamin. “[C]laims 2-18 stand or fall with claim 1” (Br.
10).3 We therefore affirm the rejection of claims 1-6, 14, 17, and 18.
4. OBVIOUSNESS -- CLAIMS 7-9, 11-13, 19, and 20
Claims 7-9, 11-13, 19, and 20 stand rejected under 35 U.S.C. § 103 as
obvious over Benjamin and Cowan (Answer 3). The Examiner reasons that
“[i]t would have been obvious to one having ordinary skill in the art at the
time the invention was made to employ a colorant agent as taught by Cowan
et al. in the litter of Benjamin et al. in order to enhance the appearance of the
litter composition” (Final Rejection 4). The Examiner urges that the amount
of coloring agent recited in the claims would have been obvious “since it has
been held that where routine testing and general experimental conditions are
present, discovering the optimum or workable value/ranges until the desired
effect is achieved involves only routine skill in the art” (id.).
Appellants argue that claim 19 is distinguishable over Benjamin and
Cowan because “one of ordinary skill in the art would not be motivated to
3 The Reply Brief provides a separate heading and argument for every
appealed claim (Reply Br. 10-22), but Appellants’ failure to argue the claims
separately in the Appeal Brief “constitute[s] a waiver of any argument that
the Board must consider the patentability of any grouped claim separately.”
37 C.F.R. § 41.37(c)(1)(vii).
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