Appeal No. 95-5048
Application No. 08/162,372
inner wall face including an edge portion
adjacent the connecting wall, a central
portion adjacent the edge portion (see col.
3, lines 59-65). The article includes
cover and base members hinged together
along a hinge portion (see col. 4, lines
45-46).
However, the examiner has failed to address the additional
limitation in claim 1 of "at least one essentially U-shaped
opening in the inner wall face . . . forming at least one flap
member integral with said connecting wall, wherein said flap
member is movable towards and away from said outer wall . . .
."
The examiner bears the initial burden of presenting a
prima facie case of unpatentability. In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). A
rejection based on 35 U.S.C. § 103 is premised on the "subject
matter as a whole." Having failed to explain how Schurman
either describes or renders obvious this additional limitation
in claim 1, the examiner has failed to establish how Schurman
renders the claimed "subject matter as a whole" obvious under
35 U.S.C. § 103, and therefore, has failed to satisfy his
initial burden of presenting a prima facie case of
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