Appeal No. 1998-1801
Application No. 08/285,411
The allocation of burdens requires that the USPTO produce the factual basis for its
rejection of an application under 35 U.S.C. § § 102 and 103. In re Piasecki, 745 F.2d
1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984) (citing In re Warner, 379 F.2d 1011,
1016, 154 USPQ 173, 177 (CCPA 1967)). The one who bears the initial burden of
presenting a prima facie case of unpatentability is the examiner. In re Oetiker, 977 F.2d at
1445, 24 USPQ2d at 1444. The reference as applied is not sufficient to establish prima
facie obviousness of the claimed subject matter as a whole, in view of appellants’
unanswered arguments. We therefore cannot sustain the section 103 rejection of the
claims.
CONCLUSION
The rejection of claims 18-21 is reversed.
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