Appeal No. 1998-1814 Page 10
Application No. 08/347,814
Cir. 1984). These showings by the examiner are an essential
part of complying with the burden of presenting a prima facie
case of obviousness. Note In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992). If that burden is met,
the burden 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. See id.;
In re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed.
Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052,
189 USPQ 143, 147 (CCPA 1976).
Claims 121 and 155 stand rejected under 35 U.S.C. § 103
as unpatentable over either Mantz (‘448) or Mantz (‘273) in
view of either Gallagher or Cassidy. The examiner’s position
(answer, pages 4 and 5) with respect to the claims from which
claims 121 and 155 depend, is that both Cassidy and Gallagher
teach simultaneous modulation. We find that both Cassidy
(page 280, col. 2) and Gallagher (Figure 1) suggest
simultaneous modulation of the wavelength of the light source
with first and second frequencies. With regard to claims 121
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