Appeal No. 2001-1064
Application No. 09/164,069
OPINION
We have carefully considered the subject matter on appeal, the
rejection advanced by the Examiner, the arguments in support of the
rejection and the evidence of obviousness 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 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
6-17. 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 is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led to
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