Appeal No. 1997-1665 Page 5
Application No. 08/289,134
however, that he erred in rejecting claims 2-11, 14, 15, and
17. Accordingly, we affirm-in-part.
We begin by noting the following principles from In re
Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993).
In rejecting claims under 35 U.S.C. Section 103, the
examiner bears the initial burden of presenting a
prima facie case of obviousness. In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).... "A
prima facie case of obviousness is established when the
teachings from the prior art itself would appear to have
suggested the claimed subject matter to a person of
ordinary skill in the art." In re Bell, 991 F.2d 781,
782, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993) (quoting In re
Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147 (CCPA
1976)). If the examiner fails to establish a prima facie
case, the rejection is improper and will be overturned.
In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598
(Fed. Cir. 1988).
We next find that the references represent the level of
ordinary skill in the art. See In re GPAC Inc., 57 F.3d 1573,
1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995) (finding that the
Board of Patent Appeals and Interference did not err in
concluding that the level of ordinary skill was best
determined by the references of record); In re Oelrich, 579
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