Appeal No. 1999-1065
Application No. 08/754,379
and every element of the claim on such speculation. Thus, the
rejection under § 102 cannot be sustained.
Since all the limitations of claim 21 and of claims 22
through 24, 30 and 31, which are dependent on claim 21, are
not disclosed in Everett, we will not sustain the examiner’s
rejection of claims 21 through 24, 30 and 31 under 35 U.S.C.
§ 102(b).
The § 103(a) rejection
We will not sustain the rejection of claims 25 through 27
and 32 through 34 under 35 U.S.C. § 103(a) over Everett in
view of Roth or Chin.
In rejecting claims under 35 U.S.C. § 103 the examiner
bears the initial burden of presenting a prima facie case of
obviousness. In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993); In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). Only if that
burden is met does the burden of coming forward with evidence
or argument shift to the applicant. Id. 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). In order to
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