Appeal No. 1997-2212 Page 5
Application No. 08/233,387
prima facie case of obviousness. In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). Only if that burden is met, does the burden
of coming forward with evidence or argument shift
to the applicant. Id. "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).
With these in mind, we analyze the examiner’s rejection.
The examiner’s rejection is based on the following
premise.
As shown in Fig. 1, a program 10 is written in X
instruction set employed in producing an executable
form of the program 10. The X instruction is
compiled and linked by a computer system, for
example VAX, according to its instruction code. The
first instruction set is compiled and linked (block
16, 18). The machine code is translated to other
code through code translator (block 32) or through
direct translation path (26) as disclosed in Column
3, lines 37-46, Column 6, lines 1-16. The
translated code is recompiled and properly executed
to guarantee preservation of X instructions or
platform. These instruction are executed by
computer 20 (Fig. 1).
Robinson also disclose [sic] prior art teaching
of high level [sic] programs migration such as
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