Appeal No. 2006-0871
Application No. 10/678,799
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, the appellant’s
arguments set forth in the briefs along with the examiner’s
rationale in support of the rejections and arguments in rebuttal
set forth in the examiner’s answers.
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 the
claims on appeal. 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
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