Appeal No. 1998-0526
Application 08/395,335
applied prior art results in a failure to properly establish a
prima facie case
of obviousness. As noted above, the failure to make the prima
facie case of obviousness by the examiner must result in a
reversal of the rejection made under 35 U.S.C. § 103.
We also note that the examiner’s reliance on “common
knowledge in the art” is not a sufficient basis to support the
obviousness rejection of each of the dependent claims. We
agree with appellant that where the level of such common
knowledge is being contested, the examiner has the burden to
provide evidence in the record to support the examiner’s
conclusion of obviousness. Such evidence is lacking in this
record.
In conclusion we have not sustained either of the
examiner’s rejections of the claims. Therefore, the decision
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