Appeal No. 2001-1504
Application 08/618,263
jaw receiving a portion of the inner laminae of the movable
jaw for strength and stability as taught by Emmett” (answer,
page 3).
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, 24
USPQ2d 1443, 1444-45 (Fed. Cir. 1990); 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.
In the present case, the appellant does not challenge,
and in fact seems to acquiesce to (see page 11 in the main
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