Ex parte GRUETZNER et al. - Page 4




          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                                                                         

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