Appeal No. 1997-0252
Application 08/200,820
OPINION
We have carefully considered the subject matter on appeal, the rejection advanced by
the examiner and the evidence of obviousness relied upon by the examiner as support for
the rejection. We have, likewise, reviewed and taken into consideration, in reaching our
decision, the appellants’ arguments set forth in the briefs along with the examiner’s
rationale in support of the rejection and arguments in rebuttal set forth in the examiner’s
answer.
It is our view, after consideration of the record before us, that the evidence relied upon
and the level of skill in the particular art would have suggested to one of ordinary skill in the
art the obviousness of the invention as set forth in claims 7-15, 22 and 24-28. Accordingly,
we affirm.
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 (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
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