Appeal No. 1997-3581
Application No. 08/010,291
We have carefully considered the subject matter on
appeal, the rejection advanced by the Examiner, the arguments
in support of the rejection and the evidence of obviousness
relied upon by
the Examiner as support for the rejection. We have, likewise,
reviewed and taken into consideration, in reaching our
decision, Appellant’s 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 evidence relied upon and the level of skill in
the particular art would not have suggested to one of ordinary
skill in the art the invention set forth in claims 1-3 and 6.
Accordingly, we reverse.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the Examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the Examiner is expected to make the factual
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