Appeal No. 97-1277
Application No. 07/820,261
for the rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellant’s
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 41-44. We reach the opposite conclusion
with respect to claims 13-19, 23, 30-32 and 34-40.
Accordingly, we affirm-in-part.
As a general proposition in an appeal involving a
rejection under 35 U.S.C. § 103, an examiner is under a burden
to make out a prima facie case of obviousness. If that burden
is met, the burden of going forward then shifts to the
applicant to overcome the prima facie case with argument
and/or evidence. Obviousness is then determined on the basis
of the evidence as a whole and the relative persuasiveness of
the arguments.
See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
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