Appeal No. 1997-2682
Application No. 08/382,937
separate arguments with respect to any of the dependent claims
2, 6, and 9. Accordingly, claims 1, 2, 6, and 9 will stand or
fall together and we will select claim 1 as representative of
all of the claims on appeal.
As a general proposition in an appeal involving a
rejection under 35 U.S.C. § 103, an Examiner is under a burden
to make out a prima facie case of obviousness. If that burden
is met, the burden of going forward then shifts to Appellants
to overcome the prima facie case with argument and/or
evidence. Obviousness is then determined on the basis of the
evidence as a whole and the relative persuasiveness of the
arguments. See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In
re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir.
1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788
(Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1051, 189
USPQ 143,
147 (CCPA 1976).
With respect to representative independent claim 1, the
Examiner, as the basis for the obviousness rejection, proposes
to modify the light source structure of Welker which filters
4
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