Appeal 2007-0954
Application 09/999,074
6. Claims 33 and 35 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Berg in view of Guheen, Hsu, and further in view
of Ahuwalia.
7. Claim 57 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Berg in view of Guheen, Flores, and further in view of Hsu.
8. Claim 63 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Berg in view of Guheen, Hsu, and further in view of Flores.
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Briefs and the Answer for their respective details. In this
decision, we have considered only those arguments actually made by
Appellants. Arguments which Appellants could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii).
OPINION
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 have
suggested to one of ordinary skill in the art the invention set forth in the
claims on appeal. Accordingly, we affirm.
We first consider the Examiner’s rejection of claims 1-3, 5, 7-15,
17-20, 24, 26-28, 38, 39, 41, 43-46, 48, 49, 53, 54, and 58-60 under 35
U.S.C. § 103(a) as unpatentable over Berg in view of Guheen. 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
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