Appeal No. 98-1604
Application 08/354,539
OPINION
We have carefully reviewed the appellant's invention as
described in the specification, the appealed claims, the prior
art applied by the examiner and the respective positions advanced
by the appellant in the brief and by the examiner in the answer.
As a consequence of this review, we will not sustain any of the
above-noted rejections.
Considering first the provisional rejection of claims 16,
18, 20-24, 27-32 and 34-40 under "the judicially created doctrine
of double patenting" over claims 1-21 of the appellant's
copending application Serial No. 08/197,610, the appeal of claims
1-21 in that application has been dismissed. This being the
case, the question of double patenting is moot and, accordingly,
this rejection cannot be sustained.
We now turn to the rejections under 35 U.S.C. § 103 of
claims 16, 18-25 and 27-40 as being unpatentable over Yamada in
view of Ascari and claim 26 as being unpatentable over Yamada in
view of Ascari and Japanese abstract. We initially note that 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,
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