Appeal No. 1997-3975
Application No. 08/395,376
and
shown in Figures 5-18 of the reference constitutes a means for
distinguishing between looped and not looped entities to the
artisan skilled in interpreting such graphical
representations. Therefore, we sustain the rejection of
claims 9-11 under
35 U.S.C. § 102.
We now consider the rejection of claims 13-18 under
35 U.S.C. § 103 as unpatentable over the teachings of Shofner
in view of Duncan. 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, 148 USPQ 459, 467 (1966), and to provide a
reason why one having ordinary skill in the pertinent art
would have been led to modify the prior art or to combine
prior art references to arrive at the claimed invention. Such
reason must stem from some teaching, suggestion or implication
in the prior art as a whole or knowledge generally available
to one having ordinary skill in the art. Uniroyal, Inc. v.
9
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