Appeal No. 1997-0200
Application No. 08/202,860
We have carefully considered the subject matter on
appeal, the rejection advanced by the Examiner and the
evidence of obviousness relied upon by the Examiner as support
for the rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, Appellants’ arguments
set forth in the Brief along with the Examiner’s rationale in
support of the rejection and arguments in rebuttal set forth
in the Examiner’s Answer.
It is our view, after consideration of the record before
us, that the evidence relied upon and the level of skill in
the particular art would have suggested to one of ordinary
skill in the art the obviousness of the invention as set forth
in claims 28, 33, 37, and 38. Accordingly, we affirm.
As a general proposition in an appeal involving a
rejection under 35 U.S.C. § 103, an Examiner is under a burden
to make out a prima facie case of obviousness. If that burden
is met, the burden of going forward then shifts to Appellant
to overcome the prima facie case with argument and/or
evidence. Obviousness is then determined on the basis of the
evidence as a whole and the relative persuasiveness of the
arguments. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
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