Appeal No. 97-4179
Application 08/510,526
and either head tilt or head bend -- since it is readily apparent
that all three torticollis characteristics are not measured
"simultaneously" as lines 1-3 now set forth. In lines 1-3 of
claim 2, we interpret "said horizontal protractor means includes
means, defining a cutout portion" to be -- said means for
enabling manual positioning includes means defining a cutout
portion -- since it is readily apparent that the latter mentioned
means is a necessary part of the means for enabling manual
positioning previously set forth in lines 14-17 of claim 1.
Having carefully considered the respective positions
advanced by the appellants in the brief and reply 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) and
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).
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