Appeal No. 1997-3851
Application No. 08/355,210
Rather than reiterate the arguments of Appellants and the
Examiner, reference is made to the briefs and answers for the 1 2
respective details thereof.
OPINION
We will not sustain the rejection of claims 27 and 28
under 35 U.S.C. § 103.
The Examiner has failed to set forth a prima facie case.
It is the burden of the Examiner to establish why one having
ordinary skill in the art would have been led to the claimed
invention by the express teachings or suggestions found in the
prior art, or by implications contained in such teachings or
suggestions. In re Sernaker, 702 F.2d 989, 995, 217 USPQ 1, 6
1Appellants filed an appeal brief on September 23, 1996.
Appellants filed a reply brief on February 13, 1997. The
Examiner responded by allowing claims 25 and 26 in view of the
terminal disclaimer filed with the reply brief. The Examiner
is silent as to whether the Examiner considered and entered
the reply brief. However, in view of the fact that the
Examiner had responded to the terminal disclaimer which was
referenced in the reply brief and did not make a positive
statement that the reply brief has not been entered, we will
view that the Examiner did consider and enter the reply brief
and the reply brief is properly before us for our
consideration. Appellants filed an additional supplemental
appeal brief on February 18, 2000.
2The Examiner filed an answer on December 13, 1996. The
Examiner filed a supplemental Examiner’s answer on March 12,
1997.
3
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