Ex parte BETTCHER et al. - Page 4




          Appeal No. 95-3940                                                          
          Application 08/206,022                                                      

          61 should not be sustained.  Our reasons for this                           
          determination follow.                                                       
                    The rejection is based upon lack of patentability                 
          under 35 U.S.C.  103.  In rejecting claims under 35 U.S.C.                
          103, the examiner bears the initial burden of presenting a                  
          prima facie case of obviousness.  In re Rijckaert, 9 F.3d                   
          1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993);  In re                   
          Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.               
          1992).  Only if the burden is met does the burden of coming                 
          forward with evidence or argument shift to the appellants.                  
          Id., if the examiner fails to establish a prima facie case,                 
          the rejection is improper and will be overturned.  In re Fine,              
          837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).                  


                    It is examiners position that:                                    
                    It would have been obvious to one of ordinary skill               
                    in the art to exchange the inner most wire 22' of                 
                    the figure 5 embodiment for a strand of synthetic                 
                    material in view of the suggestion in the figure 2                
                    embodiment so that the amount of wire may be reduced              
                    thereby increasing the flexibility of the overall                 
                    yarn and reducing its weight and in view of the                   
                    teaching in column 2 that if a polyester or fiber                 
                    bottom wrap is used, it tends to aid in holding all               
                    the covering onto the core.  [Examiner's Answer at                
                    page 3]                                                           

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