Appeal No. 1998-1635
Application No. 08/470,596
Claims 35 and 37 are rejected as being unpatentable under 35 U.S.C. § 103(a) over
the combination of Aida I, Aida II and Asmussen in combination with Sirtl or
McNeilly. Claims 25, 29, 35 and 37 depend upon either claim 24 or 28. The
Examiner add the Yamazaki, Sirtl and McNeilly references to address the
additional limitations of the rejected claims. Yamazaki, Sirtl and McNeilly do not
solve the deficiencies in the Examiner’s prima facie case identified above.
Consequently, claims 25, 29, 35 and 37 are patentable for the reasons stated above
regarding claims 24 and 28.
In the absence of sufficient factual evidence or scientific rationale to
establish why and how a skilled artisan would have arrived at the subject matter of
claims 24 and 28 from the applied references, we find that the initial burden of
establishing the prima facie obviousness of the claimed subject matter has not been
met. Accordingly, we are constrained to reverse the Examiner*s 35 U.S.C. §
103(a) rejections of claims 24, 25, 27 to 32, 34, 35, 37, 38, 39 and 41 to 48.
CONCLUSION
The rejection of claims 24, 27, 28, 30-32, 34, 38, 39 and 41-48 as
unpatentable under 35 U.S.C. § 103(a) over the combination of Aida I, Aida II and
Asmussen is reversed.
The rejection of claims 25 and 29 are rejected as unpatentable under
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