Appeal No. 1998-2459 Page 4
Application No. 08/566,340
In reaching our decision in this appeal, we have
carefully considered the subject matter on appeal, the
rejections advanced by the examiner, and the evidence of
obviousness relied upon by
the examiner as support for the rejections. We have,
likewise, reviewed and taken into consideration, in reaching
our decision, the appellants’ arguments set forth in the
briefs along with the examiner's rationale in support of the
rejections 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 invention as set forth in claims 1-9 and
11-13. Accordingly, we reverse, essentially for the reasons
set forth by appellant.
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
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