Appeal No. 1997-1899
Application No. 08/407,145
To reject claims in an application under section 103, an examiner
must show an unrebutted prima facie case of obviousness. See In re
Deuel, 51 F.3d 1552, 1557, 34 USPQ2d 1210, 1214 (Fed. Cir. 1995). In
the absence of a proper prima facie case of obviousness, an applicant who
complies with the other statutory requirements is entitled to a patent. See In
re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). On appeal to the Board, an applicant can overcome a rejection by
showing insufficient evidence of prima facie obviousness or by rebutting the
prima facie case with evidence of secondary indicia of nonobviousness.
In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1455 (Fed. Cir. 1998). Here, we
find that appellant has overcome the prima facie case of obviousness by showing
insufficient evidence by the examiner of obviousness. Therefore, we will not sustain the
rejection of claim 1 nor the rejection of dependent claims 2 and 3. Similarly, claim 4
contains the same limitation concerning the wavelength-tunable filter.
CONCLUSION
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