Appeal No. 1997-2376
Application 08/199,863
particle sizes (answer, page 7). This argument is not well
taken because the examiner has the initial burden of
establishing a prima facie case of obviousness. See In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147
(CCPA 1976). Only when a prima facie case of obviousness has
been established does appellant have the burden of rebutting
it by presenting objective evidence of non-obviousness. See
Piasecki, 745 F.2d at 1472, 223 USPQ at 788; In re Keller, 642
F.2d 413, 425, 208 USPQ 871, 882 (CCPA 1981). A final
determination regarding obviousness is then reached by
starting anew and evaluating the rebuttal evidence along with
the evidence upon which the conclusion of prima facie
obviousness was based. See Rinehart, 531 F.2d at 1052, 189
USPQ at 147. Because, for the above reasons, the examiner has
not established a prima facie case of obviousness, appellant
need not provide such rebuttal evidence.
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