Appeal No. 95-1844
Application 07/822,063
language of claim 5. Accordingly, we sustain the examiner’s
rejection of claim 5.
The remaining rejections are all based on obviousness
under 35 U.S.C. § 103. As a general proposition in an appeal
involving a rejection under 35 U.S.C. § 103, an examiner is
under a burden to make out a prima facie case of obviousness.
If that burden is met, the burden of going forward then shifts
to the applicant 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); In re
Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir.
1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788
(Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052, 189
USPQ 143, 147 (CCPA 1976).
The examiner has pointed out the teachings of each of
the prior art references, has pointed out the perceived
differences between this prior art and the claimed invention,
and has reasonably indicated how and why this prior art would
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