Appeal No. 1999-0576
Application No. 08/576,634
Claims 1-20 stand rejected under 35 U.S.C. § 103. As evidence of obviousness
the examiner offers DiGiacomo in view of Phillips with respect to claims 1, 2, 4-13 and 16-
20, and the examiner adds Casselman with respect to claims 3, 14 and 15.
Rather than repeat the arguments of appellants or the examiner, we make reference
to the briefs and the answer for the respective details thereof.
OPINION
We have carefully considered the subject matter on appeal, the rejections advanced
by the examiner and the evidence of obviousness relied upon by the examiner as support
for the rejections. We have, likewise, reviewed and taken into consideration, in reaching
our decision, the appellants’ 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 obviousness of the invention as set forth in claims 1-20. 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
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