Appeal No. 1999-2313
Application No. 08/396,288
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the
evidence of obviousness relied upon by the examiner as
support for the rejections. We have, likewise, reviewed
and taken into consideration, in reaching our decision,
the appellants’ arguments set forth in the brief along
with the examiner’s rationale in support of the
rejections and arguments in rebuttal set forth in the
examiner’s answer.
It is our view, after consideration of the record
before us, that the evidence relied upon and the level of
skill in the particular art would not have suggested to
one of ordinary skill in the art the obviousness of the
invention as set forth in claims 45-58. Accordingly, we
reverse.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis
to support the legal conclusion of obviousness. See In
re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed.
Cir. 1988). In so doing, the examiner is expected to
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