Ex parte POST - Page 3




          Appeal No. 1999-2388                                                        
          Application 08/758,513                                                      


          Rather than repeat the arguments of appellant or the                        
          examiner, we make reference to the brief 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 appellant’s               
          arguments set forth in the brief 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 1-9.  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              
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