Appeal No. 96-2573
Application No. 08/331,168
means for acquiring said optical target on said surface
of said package in accordance with said frequency shifted
optical target signal.
The examiner relies on the following reference:
Chandler et al. [Chandler] 4,874,936 Oct. 17, 1989
Claims 27, 39, 42, 43, 45, 57, 60 and 61 stand rejected
under 35 U.S.C. § 103 as unpatentable over Chandler.2
Reference is made to the brief and answer for the 3
respective positions of appellants and the examiner.
OPINION
At the outset, we note that, in accordance with
appellants’ grouping of the claims at page 5 of the brief, all
the claims will stand or fall together.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In
so doing, the examiner is expected to make the factual
2A previous rejection of the claims under 35 U.S.C. §
101 as being directed to nonstatutory subject matter was
withdrawn by the examiner and is not before us on appeal.
3A reply brief, filed June 14, 1996, was refused entry
by the examiner and is not before us.
3
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