Appeal No. 1997-3944
Application No. 08/208,807
The initial burden of presenting a prima facie case of obviousness rests on
the examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992). On these facts, the examiner failed to provide the evidence necessary
to support a prima facie case of obviousness. Where the examiner fails to establish
a prima facie case, the rejection is improper and will be overturned. In re Fine, 837
F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Accordingly, the
rejection of claims1, 2, 4-8, 13, 15 and 16 under 35 U.S.C. § 103 as being
unpatentable over Dedell in view of Davies or Li and appellants’ admissions is
reversed.
REVERSED
SHERMAN D. WINTERS )
Administrative Patent Judge )
) BOARD OF PATENT
)
WILLIAM F. SMITH ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
DONALD E. ADAMS )
Administrative Patent Judge )
BARBARA S. KITCHELL
ARNOLD, WHITE & DURKEE
P.O. BOX 4433
HOUSTON, TX 77210
DEA/jlb
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