Appeal 2007-3148
Application 10/638,885
The Examiner relies on the following prior art reference as evidence
of unpatentability:
Meyers US 5,529,436 Jun. 25, 1996
The rejection as presented by the Examiner is as follows:
1. Claims 1-9 are rejected under 35 U.S.C. § 102(b) as being
unpatentable over Meyers.
Appellants separately argue independent claims 1, 8, and 9 and
dependent claims 2, 6, and 7. Accordingly, non-argued dependent claims 3-
51, stand or fall with these claims.
OPINION
INDEPENDENT CLAIMS 1, 2, AND 8
Appellants argue Meyers does not disclose and teaches away from
using a perimeter defining enclosure (Br. 4). Instead, Appellants argue that
Meyers discloses a series of U-shaped trenches 24 to which pipe sections 42
are connected (Br. 4). Regarding claim 2, Appellants argue that Meyers’
1 Claim 3 depends upon itself which is improper under 37 C.F.R. § 1.75(c).
A review of the prosecution history reveals Appellants attempted to correct
the improper dependency in an after Final Amendment filed March 28, 2005
by making claim 3 dependent on claim 1. According to the Examiner’s
Answer, the after Final Amendment of March 28, 2005 was not entered
(Answer 2). Accordingly, the improper dependency of claim 3 has not been
corrected. In any event, dependent claim 3 can only properly depend from
either claim 1 or claim 2 according to 37 C.F.R. § 1.75(c). For reasons
given in our Opinion below, we affirm the Examiner’s § 102(b) rejection of
claims 1 and 2, such that the rejection of non-argued dependent claim 3 must
stand with our affirmance of the rejection of these claims. This claim
dependency issue needs to be corrected in any further prosecution of this
application.
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