Appeal No. 98-1474 Page 4
Application No. 08/579,385
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 appellant's argument.
The examiner makes the following assertion.
Bollman teaches ... testing signals to determine if
the background uses non-black colorant. This is
described in the determining step 250 as taught at
col. 6, lines 38-43, where it states that
determination is made as to whether each color in
the LUT, as determined by the area which has been
designated, as being a foreground color or
background color; and if a non-black colorant is
used in the background, then the grey value will
consist of non-black colorant, i.e., a value more
than the densest value of each of the r, g and b
components of the system, see col. 6, lines 8-13.
(Examiner's Answer at 4-5.) The appellant argues, "in Bollman
it is the density of colorants in the background that is being
tested against a reference level, while in this application it
is the presence of non black colorant of any density that is
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