Appeal No. 98-1234
Application No. 08/516,214
it would have been obvious to provide the brush of Kaplan, as
modified by Marick, with an opening in the head portion in
view of the teachings of Ela.
The arguments of the appellant and examiner in support of
their respective positions are found on pages 5-15 of the
brief and pages 6-9 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 rejections
are 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
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