Appeal No. 94-0432
Application 07/839,728
“[T]he examiner bears the initial burden, on review of
the prior art or on any other ground, of presenting a prima
facie case of unpatentability.” In re Oetiker, 977 F.2d 1443,
1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992). “The PTO has the
burden under section 103 to establish a prima facie case of
obviousness.” In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596,
1598 (Fed. Cir. 1988). We hold that the examiner in this case
has not made out a prima facie case of unpatentability under
35 U.S.C. § 103 in view of the applied prior art.
It is our considered opinion that any further comment in
this case by this panel would belabor the record with
criticism. Suffice to say that Appellants’ Reply Brief filed
November 15, 1993 (Paper No. 29) soundly rebutted many of the
findings and arguments made in the Examiner’s Answer. In a
Letter dated August 25, 1995 (Paper No. 32), a Primary
Examiner stated,
“The reply brief filed November 15, 1993 has been entered and
considered but no further response by the Examiner is deemed
necessary.” We respond in kind to the case of unpatentability
established by the examiner in this case and summarily reverse
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