Appeal 2007-2844
Application 09/829,032
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993) (citations omitted). In order to
determine whether a prima facie case of obviousness has been established,
we considered the factors set forth in Graham v. John Deere Co., 383 U.S.
1, 17 (1996); (1) the scope and content of the prior art; (2) the differences
between the prior art and the claims at issue; (3) the level of ordinary skill in
the relevant art; and (4) objective evidence of nonobviousness, if present.
We conclude that the Examiner has set forth a prima facie case of
obviousness, and the rejections of claims 1 and 5-9 over the combination of
Brault and Ferrari, Wilson, or Cragg, are affirmed.
Appellant argues that although Brault does refer to the other
applications of holding the basket in basketball, for holding a net in tennis or
badminton games and for generally holding pictograms or shelves, “Brault
does not infer different heights or height adjustability as the Examiner seems
to imply.” (Br. 3 (emphasis in original).) Moreover, Appellant asserts, “the
Examiner seems to imply that Appellant’s use of these features is for height
adjustment but it is not; rather Appellant’s use of ‘through-holes,’ ‘at least
one aperture’ and ‘a fastener’ is to hold the sign in an aligned, upright
position.” (Id. (emphasis in original).)
Appellant argues further that Brault teaches “two perfectly acceptable
post-holding structures, at least one of which includes features that teach
away from any substitution.” (Br. 3.) According to Appellant, a concern of
Brault is proper post rotational orientation, rather than height adjustment,
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