Appeal No. 97-1931
Application 08/364,826
implemented at the retail level. In other words, Dworkin cannot
be distinguished based only on the size of the purchaser or the
size of the order. The artisan would have recognized that the
same principles apply regardless of the size of the order to be
made. Therefore, in considering the obviousness of the claimed
invention with respect to Dworkin, the operation of Dworkin must
be considered as it would apply to the same type of retailer-
wholesaler relationship as disclosed by appellants.
We now consider the specific rejection of each of the
claims 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
7
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