Appeal No. 95-3194
Application 08/020,232
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the evidence
of obviousness relied upon by the examiner as support for the
rejections. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellants'
arguments set forth in the briefs along with the examiner's
rationale in support of the rejections and arguments in rebuttal
set forth in the examiner's answer.
It is our view, after consideration of the record before
us, that the collective evidence relied upon and the level of
skill in the particular art would have suggested to one of
ordinary skill in the art the obviousness of the invention as set
forth in claims 1, 3-6 and 9-17. We reach the opposite
conclusion with respect to claims 7 and 8. Accordingly, we
affirm-in-part.
As a general proposition in an appeal involving a
rejection under 35 U.S.C. § 103, an examiner is under a burden to
make out a prima facie case of obviousness. If that burden is
met, the burden of going forward then shifts to the applicant to
overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a
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