Appeal No. 1998-3356
Application No. 08/391,472
We agree with appellants’ argument. In the absence of a
prima facie showing of unpatentability by the examiner, the
burden of proof never shifted to appellants to prove the
nonobviousness of the claimed invention. In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). For
this reason, the obviousness rejection of claims 22 and 23 is
reversed.
DECISION
The decision of the examiner rejecting claims 22 and 23
under 35 U.S.C. § 103 is reversed.
REVERSED
)
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LEE E. BARRETT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOSEPH F. RUGGIERO )
Administrative Patent Judge )
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