Appeal No. 98-1449 Page 6
Application No. 08/297,122
The appellants seasonably challenged (see Paper No. 5,
filed February 7, 1996, and the brief) the above-noted
assertions of well known prior art. Accordingly, the
assertions have not been established as admitted prior art.
The Manual of Patent Examining Procedure (MPEP) § 706.02(a)
states that "if the applicant traverses such an assertion the
examiner should cite a reference in support of his or her
position." In this case, the examiner did not cite a
reference in support of the assertions of "well known" prior
art.
Since the above-noted unsupported assertions cannot be
used as prior art, it is clear that the examiner's rejection
of claims 6 and 7 fails to establish a prima facie case of
obviousness. That is, the examiner has failed to present
evidence that would appear to be sufficient for one of
ordinary skill in the art to make the proposed modification.
Accordingly, the decision of the examiner to reject claims 6
and 7 under 35 U.S.C. § 103 is reversed.2
2The examiner should consider whether the prior art of
record (e.g., Likozar, Blacklin, Shaub, Meredith,
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