Appeal No. 1997-0201
Application No. 08/140,318
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 4-6, 12, and 14. We reach the opposite conclusion
with respect to claims 7-10, 11, and 13. Accordingly, we
affirm-in-part.
Appellant has indicated (Brief, pages 9 and 10) that, for
the purposes of this appeal, claims 4 and 7 through 10 stand
or fall separately. We will consider the claims separately
only to the extent that separate arguments are of record in
this appeal. Dependent claims 5, 6, and 11-14 have not been
argued separately and, accordingly, will stand or fall
together with their base claim.
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
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