Appeal No. 97-1504
Application No. 08/400,190
Claims 4, 5, 9-11, 16-18 and 22-24 stand rejected under
the judicially created doctrine of obviousness-type double
patenting over claims 1-19 of U.S. Patent No. 5,398,022 in
view of Wagai and Levine.
Claims 27 and 28 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Wagai in view of Tsunoda.
The rejections are explained in the Examiner's Answer.
The opposing viewpoints of the appellant are set forth in
the Brief.
OPINION
All three of the examiner’s rejections are grounded in
obviousness. This means that the examiner bears the initial
burden of presenting a prima facie case of obviousness (see In
re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed.
Cir. 1993)), which is established when the teachings of the
prior art itself would appear to have suggested the claimed
subject matter to one of ordinary skill in the art (see In re
Bell, 991 F.2d 781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir.
1993)).
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