Appeal No. 2001-2554 9
Application No. 08/925,321
declaration. See Answer, pages 7 and 8.
Accordingly, based on our consideration of the totality of the record before us, and
having evaluated the prima facie case of obviousness in view of appellants’ arguments and
evidence, we conclude that the preponderance of evidence with respect to claims 27
through 28 weighs in favor of obviousness of the claimed subject matter within the
meaning of § 103. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992).
Moreover, we do not consider our reliance primarily on the reference to Marechal
to constitute a "new ground" of rejection. The issue, in this respect, is whether the
appellant has had a fair opportunity to react to the thrust of the rejection. In re Kronig,
539 F.2d 1300, 1302-03, 190 USPQ 425, 426-27 (CCPA 1976).
DECISION
The rejection of claims 1, 3 through 8 and 10 through 26, and 29 through31
under 35 U.S.C. §103(a) as being unpatentable over EP’695 in view of admitted prior art
with or without Lachenal with or without Marechal is reversed.
The rejection of claims 27 through 28 under 35 U.S.C. §103(a) as being
unpatentable over EP’695 in view of admitted prior art with or without Lachenal with or
without Marechal is affirmed.
The decision of the examiner is affirmed-in-part.
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