Appeal No. 96-2243
Application 08/327,447
§ 102(b) as anticipated by or, in the alternative, under3
35 U.S.C. § 103 as obvious over Kishida.
Claim 33 stands rejected under 35 U.S.C. § 103 as
being unpatentable over Kishida in view of Fukuta.
Claims 34 through 39 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Kishida in view of Fukuta and
Carlson.
Rather than reiterate the arguments of Appellants
and the Examiner, reference is made to the brief, reply brief
and answer for the respective details thereof.
OPINION
We will not sustain the rejection of claims 19
through 27 and 30 through 39 under 35 U.S.C. § 103, nor the
rejection of claims 30 through 32 under the alternative 35
U.S.C. § 102(e) rejection.
The Examiner has failed to set forth a prima facie
case. It is the burden of the Examiner to establish why one
3Kishida’s patent date (July 10, 1990) does not qualify under 35 U.S.C. § 102(b) since it is less than one
year prior to Appellants’ effective filing date of July 25, 1990. We will assume 35 U.S.C. § 102(e) is being used since
Kishida’s filing date of March 24, 1989 is prior to Appellants’ foreign priority date of August 14, 1989.
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