Appeal No. 1997-1247
Application 08/484,196
understood the recited orientation defined by “exactly two ...
[...cells]” by virtue of the geometrical characteristics of an
array.
We therefore conclude that the Examiner’s position does
not pass muster under the above case law for the section 112,
second paragraph rejection.
Rejection under 35 U.S.C. § 103
Before we discuss the two groups of claims, we note the
general discussion of an obviousness rejection. In rejecting
claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal
conclusion of obviousness. See In re Fine, 837 F.2d 1071,
1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the
Examiner is expected to
make the factual determinations set forth in Graham v. John
Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966), and to
provide a reason why one having ordinary skill in the
pertinent art would have been led to modify the prior art or
to combine prior art references to arrive at the claimed
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