Appeal No. 1996-2581
Application No. 08/288,139
evidence of obviousness relied upon by the Examiner as
support for the rejection. We have, likewise, reviewed and
taken into consideration, in reaching our decision,
Appellants’ arguments set forth in the Brief along with the
Examiner’s rationale in support of the rejection 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 recited
in claims 8-11, 13, 14, 26, and 27. 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 make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S.
1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led
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