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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