Appeal No. 95-4292
Application 07/962,544
respective viewpoints advanced by the appellants and the
examiner. As a consequence of our review, we have made the
determinations which follow.
The rejection is one made under 35 U.S.C. § 103. We
note that in making a rejection under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In
so doing, the examiner is expected to make factual
determinations and to provide a reason why one having
ordinary skill in the pertinent art would have been led to
modify the prior art or to combine prior art references to
arrive at the claimed invention. Such reason must stem from
some teaching, suggestion or implication in the prior art as a
whole or knowledge generally available to one having ordinary
skill in the art. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837
F.2d 1044, 1051, 5 USPQ2d 1434, 1438 (Fed. Cir.), cert.
denied, 488 U.S. 825 (1988); Ashland Oil, Inc. v. Delta Resins
& Refractories, Inc., 776 F.2d 281, 293, 227 USPQ 657, 664
(Fed. Cir. 1985), cert denied, 475 U.S. 1017 (1986); ACS Hosp.
Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ
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