Appeal No. 97-0520
Application 08/248,307
The examiner’s rejections are explained on pages 3-5 of the
answer. The arguments of the appellant and examiner in support
of their respective positions may be found on pages 5-13 of the
brief and pages 5 and 6 of the answer.3
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 neither of the above-noted
rejections is 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).
The appellant’s brief is defective in that there is no grouping of the3
claims as expressly required by 37 CFR § 1.192(c)(7).
3
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