Ex parte HERSHENSON - Page 9

                 Appeal No. 1997-2133                                                                                                                
                 Application 08/172,507                                                                                                              

                          After evidence or argument is submitted by the appellant in response to rejection                                          
                 based on obviousness, patentability is determined on the totality of the record, by a                                               
                 preponderance of evidence with due consideration to persuasiveness of the argument.    We                                           
                 have carefully studied the arguments and evidence of record.   We agree with appellant that                                         
                 the cited references also include objective evidence of non-obvious,  a teaching away from                                          
                 the claimed invention, which is sufficient to rebut the examiner’s prima facie case of                                              
                 obviousness.  On balance, we believe that the totality of the evidence presented by the                                             
                 examiner and appellant weighs in favor of non-obviousness of the claimed invention.   The                                           
                 rejection of the claims for obviousness of the claimed invention is reversed.                                                       
                          The rejection of the claims under 35 U.S.C.  103 for obviousness is reversed.                                             


                                           WILLIAM F. SMITH                            )                                                             
                                           Administrative Patent Judge                          )                                                    
                                                                                                ) BOARD OF PATENT                                    
                                           HUBERT C. LORIN                             )                                                             
                                           Administrative Patent Judge                          )   APPEALS AND                                      
                                                                                                ) INTERFERENCES                                      
                                           Demetra J. Mills                                     )                                                    


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