Appeal No. 95-1187
Application 08/024,495
7. The examiner bears the burden of establishing
unpatentability by a preponderance of evidence. In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
8. Curiously, Applicant does not challenge the examiner's
rejections for obviousness in his brief.
9. Even the reply brief, which is ostensibly limited to
new points raised in the examiner's answer, 37 CFR § 1.193(b),3
only mentions obviousness in passing. (Paper 30 at 6 n.5, 7 n.8,
and 10, 11, and 12.)
10. When we asked Applicant's agent at the hearing about
his arguments against the obviousness rejections, he indicated
that they were the same as his arguments regarding anticipation.
Obviousness and anticipation are, however, different rejections
requiring different analyses.
11. Applicant complains that the examiner has improperly
dissected claim 8 rather than view the claim in its entirety.
(Paper 30 at 6 n.5.) Applicant points specifically to the
dispute over the equivalence of power standby to blocked
channels. (Paper 30 at 6-7.)
12. As we have already noted in the fact findings, the
arguments of both the examiner and Applicant are inconsistent
with the language of claim 8 and the specification. Claim 8 uses
3 The examiner did not refuse to enter the reply brief.
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