Appeal No. 1998-3055
Application No. 08/631,591
established a prima facie case of obviousness of the recited
burner height. As for the staggered formation of the burners,
the examiner argues, in reliance upon Japikse, that it would
have been obvious to one of ordinary skill in the art to stagger
Lauwers’ burners because doing so would not modify the operation
of the device (answer, page 4). The examiner, however, has
provided no explanation as to why staggering the burners would
not modify the operation of the device. Again, the examiner has
improperly relied upon a per se rule that shifting the location
of a part is obvious.
Accordingly, we conclude that the examiner has not carried
the burden of establishing a prima facie case of obviousness of
the invention recited in claim 5. Consequently, we reverse the
rejection of this claim.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1-4 over
Castelain, and claim 5 over Lauwers, are reversed.
REVERSED
TERRY J. OWENS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
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