Appeal No. 1999-2584
Application No. 08/562,988
relied upon by the Examiner as support for the rejection. We
have, likewise, reviewed and taken into consideration, in
reaching our decision, Appellants’ arguments set forth in the
Brief along with the Examiner’s rationale in support of the
rejection and arguments in rebuttal set forth in the
Examiner’s Answer.
It is our view, after consideration of the record before
us, that the Examiner has not established a prima facie case
of obviousness with respect to claims 7-12. Accordingly, we
reverse.
We also use our authority under 37 CFR § 1.196(b) to
enter a new ground of rejection of claims 7-11. The basis for
these conclusions will be set forth in detail below.
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, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the Examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S.
1,
3
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