Appeal No. 97-0178
Application 08/355,326
In our view, the Examiner's analysis is sufficiently reasonable and complete to the
extent that we find the Examiner has satisfied the burden of presenting a prima facie case
of obviousness. That is, the Examiner's analysis, if left unrebutted, would be sufficient to
support a rejection under 35 U.S.C. § 103. The burden is, therefore, upon appellant to
come forward with evidence or arguments which persuasively rebut the Examiner's prima
facie case of obviousness. Appellant has presented several substantive arguments in
response to the Examiner's rejection. Therefore, we consider obviousness based upon
the totality of the evidence and the relative persuasiveness of the arguments.
We find that the Examiner has set forth a prima facie case of obviousness by
setting forth motivation for skilled artisans to use the infra-red spectrum rather than the
ultraviolet spectrum. The Examiner has set forth the text of the rejection in the final
rejection, Paper No. 6. (See Final Rejection at pages 2-6.) The Examiner relies upon the
Fisun patent to teach the use of two bar codes which overlap each other. One of
the bar codes is in the visible range of light and the other is in the ultraviolet (non-visible)
range of light. The Examiner states that the skilled artisan would have been motivated to
use infra-red light rather than the ultraviolet because “infra-red light would perform
substantially the same purpose in substantially the same way without any adverse effects
to the system. . . . It would have been obvious to a person of ordinary skill in the art at the
time the invention was made to print the bar code in any of the known methods.” (See final
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