Appeal No. 1998-1440 Page 10
Application No. 08/368,452
In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed.
Cir. 1993).
In rejecting claims under 35 U.S.C. Section 103, the
examiner bears the initial burden of presenting a
prima facie case of obviousness. In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992).... "A prima facie case of obviousness is
established when the teachings from the prior art
itself would appear to have suggested the claimed
subject matter to a person of ordinary skill in the
art." In re Bell, 991 F.2d 781, 782, 26 USPQ2d
1529, 1531 (Fed. Cir. 1993) (quoting In re Rinehart,
531 F.2d 1048, 1051, 189 USPQ 143, 147 (CCPA 1976)).
If the examiner fails to establish a prima facie
case, the rejection is improper and will be
overturned.
In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598
(Fed. Cir. 1988).
With these principles in mind, we address the examiner's
rejection and the appellants' argument.
The examiner rejects the claims for the following reason.
"Since a specified ... time period is considered by the
teachings of Heffernan, to provide the specific ... time
period of 6 hours as claimed would be considered an obvious
experimental choice for optimization in view of Heffernan as a
whole." (Examiner's Answer at 5.) The appellants argue, "the
primary reference does not, even remotely, teach, suggest or
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