Appeal No. 2000-1779 Application No. 08/473,204 encode such unknown proteins. In re Vaeck, 947 F.2d 488, 494, 20 USPQ2d 1438, 1443-1444 (Fed. Cir. 1991). In re O’Farrell, 853 F.2d at 903, 7 USPQ2d at 1681 (what was “obvious to try” was to explore a new technology or general approach that seemed to be a promising field of experimentation, where the prior art gave only general guidance as to the particular form of the claimed invention or how to achieve it). The initial burden of presenting a prima facie case of obviousness rests on the examiner. On these facts, it is our opinion that the examiner has failed to provide the evidence necessary to support a prima facie case of obviousness as to the EAA3 receptors used in the claimed assay method. Where the examiner fails to establish a prima facie case, the rejection is improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Having determined that the examiner has not established a prima facie case of obviousness, we find it unnecessary to discuss the Kamboj Declaration executed September 29, 1995, relied on by appellants to rebut any such prima facie case. Accordingly we reverse the examiner’s rejection of claims 23, 25, 26, 37, 39, and 43-45 under 35 U.S.C. § 103(a) as being unpatentable over Heinemann in view of Bettler ‘90, Sommer ‘92, Puckett and Birnbaumer. Summary: We reverse the examiner’s rejection of claims 23, 25, 26, 37, 39, and 43- 45 under 35 U.S.C. § 103(a) as being unpatentable over Heinemann in view of Bettler ‘90, Sommer ‘92, Puckett and Birnbaumer. 19Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 NextLast modified: November 3, 2007