Appeal 2007-1050
Application 10/058,360
rejection, the Examiner adds Dazey as to claims 3, 4, 7, 11 through 13, 16,
17, 22, and 23.
Rather than repeat the positions of the Appellants and the Examiner,
reference is made to the Brief and Reply Brief for Appellants’ positions, and
to the Answer for the Examiner’s positions.
OPINION
For the reasons set forth by the Examiner in the Answer, as expanded
upon here, we sustain both rejections encompassing all claims on appeal that
were rejected under 35 U.S.C. § 103. Appellants effectively argue the
subject matter of each independent claim 1, 8, 14, 19, 24, 25, and 27
collectively since they are within the first stated rejection. The particulars of
the dependent claims rejected in this first stated rejection are not argued
before us. Likewise, the particulars of the dependent claims within the
second stated rejection are not argued before us.
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 must make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148
USPQ 459, 467 (1996). “[T]he Examiner bears the initial burden on review
of the prior art or on any other ground, of presenting a prima facie case of
unpatentability.” In re Oetiker, 977 F.3d 1443, 1445, 24 USPQ 1443, 1444
(Fed. Cir. 1992). Furthermore, “‘there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness’ . . . . [H]owever, the analysis need not seek out precise
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