Appeal No. 1997-2848
Application No. 08/444,106
in support of the rejection and the evidence of obviousness
relied upon by the Examiner as support for the rejection. We
have, likewise, reviewed and taken into consideration, in
reaching our decision, Appellants’ arguments set forth in the
Briefs along with the Examiner’s rationale in support of the
rejections and arguments in rebuttal set forth in the
Examiner’s Answer.
It is our view, after consideration of the record before
us, that the evidence relied upon and the level of skill in
the particular art would not have suggested to one of ordinary
skill in the art the obviousness of the invention set forth in
claims 1, 2, 14, and 19 through 33. Accordingly, we reverse.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the Examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the Examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S.
1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
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