Ex parte PECK et al. - Page 5




                 Appeal No. 1997-2164                                                                                                                   
                 Application No. 08/277,468                                                                                                             


                 Examiner, reference is made to the briefs  and the answers  for           2                           3                               
                 the respective details thereof.                                                                                                        


                                                                     Opinion                                                                            
                          We will not sustain the rejection of claims 1 through 9                                                                       
                 and 11 through 19 under 35 U.S.C.  103.                                                                                               
                          The Examiner has not set forth a prima facie case.  It is                                                                     
                 the burden of the Examiner to establish why one having                                                                                 
                 ordinary skill in the art would have been led to the claimed                                                                           
                 invention by the express teachings or suggestions found in the                                                                         
                 prior art or by the implication contained in such teachings or                                                                         
                 suggestions.                                                                                                                           
                 In re Sernaker, 702 F.2d 989, 995, 217 USPQ 1, 6 (Fed. Cir.                                                                            


                          2Appellants filed an Appeal brief on April 18, 1996.                                                                          
                 Appellants filed a reply brief on September 26, 1996.  On                                                                              
                 December 9, 1996, the Examiner mailed a supplemental                                                                                   
                 Examiner’s answer in response to the reply brief.  Appellants                                                                          
                 filed a reply to the supplemental Examiner’s answer on January                                                                         
                 14, 1997.  On March 31, 1997, the Examiner mailed a                                                                                    
                 communication stating that the Appellants' reply to the                                                                                
                 supplemental Examiner's answer had been entered and                                                                                    
                 considered.                                                                                                                            
                          3The Examiner mailed an Examiner's answer on July 23,                                                                         
                 1996.  On December 9, 1996, the Examiner mailed a supplemental                                                                         
                 Examiner's answer in response to Appellants' reply brief.                                                                              
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