Appeal No. 1997-2865
Application 08/113,789
teaching in a prior art reference or shown to be common
knowledge of unquestionable demonstration. Our reviewing
court requires this evidence in order to establish a prima
facie case. In re Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ
785, 787-88 (Fed. Cir. 1984); In re Knapp-Monarch Co., 296
F.2d 230, 232, 132 USPQ 6, 8 (CCPA 1961); In re Cofer, 354
F.2d 664, 668, 148 USPQ 268, 271-72 (CCPA 1966). Furthermore,
our reviewing court states in Piasecki, 745 F.2d at 1472, 223
USPQ at 788, the following:
The Supreme Court in Graham v. John Deere
Co., 383 U.S. 1 (1966). . . 148 USPQ 459
(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, 1016, 154 USPQ 173, 177
(CCPA 1967)].
We have not sustained the rejection of claims 1, 2
and 4 through 7 under 35 U.S.C. § 103. Accordingly, the
Examiner's decision is reversed.
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