Appeal No. 1998-2484 Page 4
Application No. 08/212,819
to make in the briefs have not been considered. See 37 CFR
1.192(a).
OPINION
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 2-6 and
8-13 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
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