Appeal No. 97-1931
Application 08/364,826
satisfied the burden of presenting a prima facie case of
obviousness. That is, the examiner’s analysis, if left
unrebutted, would be sufficient to support a rejection under 35
U.S.C. § 103. The burden is, therefore, upon appellants to come
forward with evidence or arguments which persuasively rebut the
examiner's prima facie case of obviousness. Appellants have
presented several substantive arguments in response to the
examiner’s rejection. Therefore, we consider obviousness based
upon the totality of the evidence and the relative persuasiveness
of the arguments.
Before we consider the arguments of appellants and the
examiner on a claim by claim basis, we will consider the
arguments directed to the evidence of secondary considerations
which are material to all the claims on appeal. The secondary
considerations furnished by appellants take the form of two
declarations by co-inventor Spiegelhoff relating to the alleged
commercial success of the invention. Although the examiner has
considered this evidence of appellants, the examiner was not
persuaded that the evidence overcame the obviousness rejection.
Appellants argue that the Spiegelhoff declarations
demonstrate commercial success in two different ways. First,
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