Appeal No. 1997-3129
Application No. 08/301,743
set forth in the Briefs along with the Examiner’s rationale in
support of the rejection 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 have suggested to one of ordinary
skill in the art the obviousness of the invention as set forth
in claims 1-3, 11, 14-18, and 20. We reach the opposite
conclusion with respect to claims 4-10, 12, 13, and 19.
Accordingly, we affirm-in-part.
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,
17-18, 148 USPQ 459, 467 (1966), and to provide a reason why
one
4
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