Appeal No. 1996-3391 Page 4
Application No. 08/160,573
OPINION
We have carefully reviewed the evidence before us,
including, inter alia, the references to Ing-Simmons and Chu in
addition to the arguments of appellants and the examiner and,
as a result of such a review, we will sustain the rejection of
claims 1 through 3, 5 through 14 and 16 through 37 under 35
U.S.C. 103 but we will not sustain the rejection of claims 4
and 5 under 35 U.S.C. 103.
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 whole and the relative persuasiveness of the arguments. See
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992); In re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685,
686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472, 223
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