Appeal No. 1998-0091
Application No. 08/404,054
Orlowski et al. (Orlowski) 4,531,415 July 30,
1985
Hegner et al. (Hegner) 5,400,489 Mar.
28, 1995
(filed Oct. 30, 1992)
Claims 3 and 5 stand rejected under § 103 for obviousness
over Bell in view of Hegner.
Claims 4 and 6 stand rejected under § 103 for obviousness
over Bell in view of Hegner and Orlowski.
D. The merits of the rejections
The examiner's burden of proof in rejecting claims for
obviousness and the appellant's burden of persuasion on appeal
to show that the rejection is erroneous are explained as
follows in In re Rouffet, 149 F.3d 1350, 1355 47 USPQ2d 1453,
1455 (Fed. Cir. 1998):
To reject claims in an application under section
103, an examiner must show an unrebutted prima facie
case of obviousness. See In re Deuel, 51 F.3d 1552,
1557, 34 USPQ2d 1210, 1214 (Fed. Cir. 1995). In the
absence of a proper prima facie case of obviousness,
an applicant who complies with the other statutory
requirements is entitled to a patent. See In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992). On appeal to the Board, an
applicant can overcome a rejection by showing
insufficient evidence of prima facie obviousness or
by rebutting the prima facie case with evidence of
secondary indicia of nonobviousness. See id.
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