Appeal No. 1997-2389
Application No. 08/987,233
of Jolley in a manner to arrive at the assay of the appealed claims. Therefore, even when
the combined teachings of all of the references are considered, it remains that the
examiner has failed to provide that evidence which would have led one of ordinary skill to
modify the assay procedure of Jolley in a manner which would have resulted in the claimed
invention. Therefore, the examiner has failed to establish a prima facie case of
obviousness within the meaning of 35 U.S.C. § 103. Where the examiner fails to establish
a prima facie case, the rejection is improper and will be overturned. In re Fine, supra.
Therefore, the rejection of claims 29, 30, 36 - 42, and 44 - 46 under 35 U.S.C. § 103 is
reversed.
Summary
The rejection of claims 27, 28, 31 - 35, 43, and 47 under 35 U.S.C. § 103 as
unpatentable over the combination of Jolley, Fernwood, and Mattiasson is reversed. The
rejection of claims 29, 30, 36 - 42, and 44 -46 under 35 U.S.C. § 103 as unpatentable over
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