Appeal No. 96-3102
Application 08/322,971
6 of the brief and pages 5 and 6 of the answer.
OPINION
Having carefully considered the respective positions
advanced by the appellant in the brief and the examiner in the
answer, it is our conclusion that the above-noted rejection is
not sustainable. 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 that burden is met does the burden of coming forward
with evidence or argument shift to the applicant. 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).
Each of the independent claims on appeal requires that
the energy applied to the resistance elements during
3
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