Appeal No. 2004-0376 Page 8
Application No. 09/457,286
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established by presenting evidence that would have led one of ordinary skill in the art to
arrive at the claimed invention. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596,
1598 (Fed. Cir. 1988) and In re Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 562
(CCPA 1972).
In this rejection, the examiner has not presented any evidence that would have
led one of ordinary skill in the art to have modified Killinger to arrive at the subject
matter of claims 23 to 25, 29, 30 and 31. Accordingly, the examiner has not presented
a prima facie case of obviousness.
For the reasons set forth above, the decision of the examiner to reject claims 23
to 25, 29, 30 and 31 under 35 U.S.C. § 103 as being unpatentable over Killinger is
reversed.
The obviousness rejection based on van Elten and Yuyama
We will not sustain the rejection of claims 3 to 6, 9 to 12, 15, 16 and 20 under
35 U.S.C. § 103 as being unpatentable over van Elten in view of Yuyama.
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