Appeal No. 97-2782 Page 11
Application No. 08/368,993
copper tubing with Bergh is an issue of patentability under 35
U.S.C. § 103 which is not before us in this appeal. Since all
the limitations of claims 39, 45 and 46 are not met by Bergh,
the decision of the examiner to reject claims 39, 45 and 46 is
reversed.
The obviousness issue
The rejection of claims 27, 28, 30 through 38 and 42
through 44 under 35 U.S.C. § 103 is sustained.
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a case of obviousness.
See In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956
(Fed. Cir. 1993). A case of obviousness is established by
presenting evidence that the reference teachings would appear
to be sufficient for one of ordinary skill in the relevant art
having the references before him to make the proposed
combination or other modification. See In re Lintner, 9 F.2d
1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
Claims 27, 28, 30-32, 35-38 and 42-44
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