Appeal No. 1997-3282
Application No. 08/189,314
an appeal involving a rejection under 35 U.S.C. § 103, the
examiner is under a burden to make out a prima facie case of
obviousness. Only, if that burden is met, does the burden of
going forward then shift to the applicant 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, 1052, 189 USPQ 143, 147 (CCPA 1976).
We do not agree with the examiner's assertion that
Shibano teaches all the elements of the claimed invention
except a thermosettable acrylate-based pressure sensitive
adhesive. Independent claim 1 requires "a release film
comprising a first layer comprising a polyolefin polymer
having a density of no greater than 0.90 g/cc and a CDBI of
greater than about 70 percent" (emphasis ours). Although
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007