Appeal No. 2001-2625 Page 8
Application No. 09/458,052
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of
obviousness is established by presenting evidence that would
have led one of ordinary skill in the art to combine the
relevant teachings of the references to arrive at the claimed
invention. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d
1596, 1598 (Fed. Cir. 1988) and In re Lintner, 458 F.2d 1013,
1016, 173 USPQ 560, 562 (CCPA 1972).
In both of the rejections under 35 U.S.C. § 103 before us
in this appeal, the examiner determined (answer, p. 5) that
Figures 7 to 13 of Shay disclose the following subject matter:
a dispensing device comprising: a container 12; a plug
18' including a bore 22'; an outlet tube 30' having an
open top end (receiving 28) and a "closed" (by 37')
bottom end; a dip tube 32' having an open top end (at 29)
and a "closed" (by 34') bottom end; and vent holes (37a,
at 29, 40).
The examiner ascertained (answer, p. 5) that Shay teaches all
the claimed subject matter of claims 5 and 13 (the only
independent claims rejected under 35 U.S.C. § 103) "except for
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