Appeal No. 1999-2207
Application No. 08/967,152
answer (Paper No. 9, mailed Feb. 2, 1999) for the examiner's reasoning in support of the
rejection, and to appellants’ brief (Paper No. 8, filed Dec. 28, 1998) and reply brief (Paper
No. 10, filed Mar. 26, 1999) for appellants’ arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellants’ specification and claims, to the applied prior art reference, and to the
respective positions articulated by appellants and the examiner. As a consequence of our
review, we make the determinations which follow.
“To reject claims in an application under section 103, an examiner must show an
unrebutted prima facie 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.” In re Rouffet, 149 F.3d
1350, 1355, 47 USPQ2d 1453, 1455 (Fed. Cir. 1998). Here, we disagree with the
examiner’s rejection with respect to independent claim 9 and find that appellants have
shown the rejection lacks support for the invention as recited in independent claim 9.
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