Appeal No. 1999-1569
Application 29/021,723
To reject a claim, an examiner bears the initial burden
of presenting a factual basis establishing a prima facie case
of unpatentability. In re Oetiker, 977 F.2d 1443, 1445-46,
24 USPQ2d 1443, 1444-45 (Fed. Cir. 19922); In re Piasecki,
745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). If
this burden is met, the burden of coming forward with a
showing of facts supporting the opposite conclusion shifts to
the applicant. After such rebuttal evidence is submitted, all
of the evidence must be considered anew, with patentability
being determined on the totality of the record, by a
preponderance of evidence with due consideration to
persuasiveness of argument. Of course, if the examiner’s
initial showing does not produce a prima facie case of
unpatentability, then without more the applicant is entitled
to grant of the patent. Id.
With regard to the rejection at bar, the examiner’s
determination that the claimed design for a combine platform
auger finger guide is functional rests solely on a series of
unsupported and purely conjectural assertions, rather than on
a sound and cogently explained factual basis. Hence, there is
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