Appeal No. 1997-3437
Application 08/315,740
With respect to the other independent claim 32, it is a
method claim corresponding to the apparatus claim 24.
Therefore, we do not sustain the anticipation rejection of
claim 32 over Yamanaka for the same reasons. Consequently, we
do not sustain the anticipation rejection of dependent claims
25, 28, 29 and 34 over Yamanaka.
Rejection under 35 U.S.C. § 103
Claim 29 is rejected as being obvious over Yamanaka.
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 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.
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