Appeal No. 1996-2321
Application No. 08/137,228
on per se rules of obviousness is legally incorrect and the
examiner must establish that the invention as claimed would
have been obvious over the cited prior art, based on the
specific comparison of that prior art with the claim
limitations. In re Ochiai, 71 F.3d at 1572, 37 USPQ2d at
1133.
For the foregoing reasons, we find that the examiner has
not established a prima facie case of obviousness in view of
the reference evidence. Because we reverse the examiner’s
rejection on the basis of failure to establish a prima facie
case of obviousness, we need not discuss the sufficiency of
the showing of unexpected results (see the Brief, pages 8-10,
and the Answer, page 6). In re Geiger, 815 F.2d 686, 688, 2
USPQ2d 1276, 1278 (Fed. Cir. 1987). Accordingly, the
rejection of claims 2, 6, 8-10 and 12 under 35 U.S.C. § 103 as
unpatentable over Challis is reversed.
The decision of the examiner is reversed.
REVERSED
TERRY J. OWENS )
Administrative Patent Judge )
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