Appeal No. 2006-1625
Application No. 09/915,033
2. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lambropoulous in view of Prosan, Guerin, and further in view
of Kurosu.
Rather than repeat the arguments of appellants or the examiner, we make
reference to the briefs and the answer for the respective details thereof.
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, appellants’ 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 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 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
3
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