Appeal No. 1997-1793
Application No. 08/528,044
We therefore determine that the examiner has not carried
the initial burden of establishing a prima facie case of
obviousness within the meaning of 35 U.S.C. § 103 against the
subject matter of the appealed claims. In re Rijckaert, 9
F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993); In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). Since the examiner’s initial burden of proof has not
been met, we need not address the sufficiency of the
appellants’ declaration evidence (Paper No. 9 and Paper No.
18) relative to the examiner’s stated rejection. In re Fine,
837 F.2d 1071, 1076, 5 USPQ2d 1596, 1600 (Fed. Cir. 1988).
The examiner’s stated rejection under 35 U.S.C. § 103 of
claims 2 through 5, 9, and 10 as unpatentable over Kleinschmit
in view of Hattori and Ishihara is reversed.
REMAND TO THE EXAMINER
Upon the return of this application to the jurisdiction
of the examiner, the following issues should be fully
considered by the examiner.
1. Whether claims 2, 5, and 9 should be rejected under
35 U.S.C. § 102(b) as anticipated by or, in the alternative,
under 35 U.S.C. § 103(a) as unpatentable over Hattori.
10
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