Appeal No. 96-2686
Application 08/224,213
[brief, pages 5 to 6].
The examiner responds that it was extremely well known in
the art to enable the head to translate between an operable
position and a withdrawn position so as to control contact
between the magnetic head and the magnetic tape contained in
the cassette. The Examiner contends that Herleth was cited as
evidence of such notoriety [answer, pages 5 to 6].
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
determinations set forth in Graham v. John Deere Co., 383 U.S.
1, 17, 148 USPQ 459, 467
(CCPA 1966), and to provide a reason why one having ordinary
skill in the pertinent art would have been led to modify the
prior art or to combine prior art references to arrive at the
claimed invention. Such reason must stem from some teaching,
suggestion or implication in the prior art as a whole or
knowledge generally available to one having ordinary skill in
the art. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044,
-5-
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