Appeal No. 1996-3708
Application 07/474,742
Graham is interpreted as continuing to place the
"burden of proof on the Patent Office which requires
it to produce the factual basis for its rejection of
an application under section 102 and 103". Citing
In re Warner, 379 F.2d 1011, 1016, 154 USPQ 173, 177
(CCPA 1967).
As there is no evidence to support the assertion of the
secondary teaching we will not sustain the rejection of claims
1 through 13, 15 through 34 and 36 through 38 under 35 U.S.C.
§ 103.
The Issue of whether Engels is Prior Art
On page 28 of the appeal brief, Appellants argue that the
Engels reference is not prior art under § 102 as it is
published after the filing date of the parent application. 2
Appellants assert it is improper for two reasons a) the
publication date
2This application is a continuation in part of
application 07/217,616 filed on July 11, 1988, now U.S. Patent
5,068,823, the earliest of dates identified on the Engels
reference is December 1988.
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