Appeal 2007-1983
Application 09/800,366
with some rational underpinning to support the legal conclusion of
obviousness. . . . [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id., 127 S. Ct. at 1741, 82 USPQ2d
at 1396 (quoting In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336
(Fed. Cir. 2006)).
If the Examiner’s burden is met, the burden then shifts to the
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Turning to the Examiner’s rejection, we conclude that the Examiner
has established at least a prima facie case of obviousness of claims 3-5 that
Appellant has not persuasively rebutted. Specifically, the Examiner has (1)
pointed out the teachings of the Wood references, (2) noted the perceived
differences between these references and the claimed invention, and (3)
reasonably indicated how and why the references would have been modified
to arrive at the claimed invention (Answer 6-7). Once the Examiner has
satisfied the burden of presenting a prima facie case of obviousness, the
burden then shifts to Appellant to present evidence or arguments that
persuasively rebut the Examiner's prima facie case. Appellant did not
persuasively rebut the Examiner's prima facie case of obviousness, but
merely reiterated that the Wood references fail to disclose applying two or
more bias pulses substantially sequentially to each microbolometer in an
array in each frame time (Br. 28-29).
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