Appeal No. 1997-1336
Application 08/267,433
into consideration, in reaching our decision, the appellant’s
arguments set forth in the brief along with the examiner’s
rationale in support of the rejections 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 1-11. Accordingly, we affirm.
We consider first the rejection of claims 1, 2, 6, 7, 9
and 10 under 35 U.S.C. § 103 as unpatentable over the
teachings of Yamane in view of Bougger. These claims stand or
fall together except for claim 7 which is argued separately
[brief, page 12]. 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
5
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