Appeal 2007-0760
Application 09/974,373
determined. Such secondary considerations as commercial
success, long felt but unsolved needs, failure of others, etc.,
might be utilized to give light to the circumstances surrounding
the origin of the subject matter sought to be patented. As indicia
of obviousness or nonobviousness, these inquiries may have
relevancy.
In rejecting claims under 35 U.S.C. § 103, the Examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). See
also In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984). The Examiner can satisfy this burden by showing some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness. KSR Int’l. v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d
1385, 1396 (Apr. 30, 2007) (citing In re Kahn, 441 F.3d 977, 988,
78 USPQ2d 1329, 1336 (Fed. Cir. 2006)). Only if this initial burden is met
does the burden of coming forward with evidence or argument shift to the
Appellant. Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444. See also
Piasecki, 745 F.2d at 1472, 223 USPQ at 788. Thus, the Examiner must not
only assure that the requisite findings are made, based on evidence of record,
but must also explain the reasoning by which the findings are deemed to
support the Examiner’s conclusion.
ANALYSIS
35 U.S.C. § 103(a) REJECTION
As set forth above, representative claims 1 and 8 recite, inter alia, a
client application that periodically sends to a server application a status
signal indicating a continued connection with the server and identifying
resources of the server currently being used by the client computer. As
7
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