Appeal No. 2006-0576
Application No. 10/284,473
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, Appellant’s 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 invention as set forth in claims 1-27. 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 modify the prior art or to combine prior art
references to arrive at the claimed invention. Such reason must stem from some teaching,
suggestion or implication in the prior art as a whole or knowledge generally available to one
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