Appeal No. 1996-3960
Application No. 08/380,444
The Supreme Court in Graham v. John Deere Co., 383
U.S. 1 (1966), focused on the procedural and
evidentiary processes in reaching a conclusion under
Section 103. As adapted to ex parte procedure,
Graham is interpreted as continuing to place the
"burden of proof on the Patent Office which requires
it to produce the factual basis for its rejection of
an application under section 102 and 103." Citing
In re Warner, 379 F.2d 1011, 1020, 154 USPQ 173, 177
(CCPA 1967).
For the foregoing reasons we will not affirm the
rejection of claims 1 through 4 and 8 under 35 U.S.C. § 102,
nor will we affirm the rejection of claims 1 through 4 and 7
through 11 under 35 U.S.C. § 103.
No period for taking any subsquent action in connection
with this appeal may be extended under 37 CFR § 1.136(a).
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
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