Appeal No. 2002-1153
Application No. 09/063,720
See In re Oetiker, 977 F.2d 1443, 1446, 24 USPQ2d 1443, 1445
(Fed. Cir. 1992); In re King, 801 F.2d 1324, 1327, 231 USPQ 136,
138-9 (Fed. Cir. 1986). Only if that burden is met, does the
burden of going forward shift to the applicant. Id. at 1327, 231
USPQ at 138-39. Once a prima facie case is established and
rebuttal evidence is submitted, the ultimate question becomes
whether, based on the totality of the record, the examiner
carried his burden of proof by a preponderance. See Oetiker, 977
F.2d at 1445, 24 USPQ2d at 1444. In this case, after carefully
reviewing all the evidence before us, it is our conclusion that
the evidence offered by the examiner is insufficient to establish
a prima facie case of anticipation. Thus, Cisneros does not
anticipate claim 24, nor the other independent claims, which
recite repeatedly obtaining coarse positions of increasing
accuracy. Accordingly, the 35 U.S.C. § 102 rejection of claims
20-25 over Cicneros cannot be sustained.
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