Appeal No. 1999-0485 Application 08/526,781 this evidence in order to establish a prima facie case. In re Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88 (Fed. Cir. 1984); In re Knapp-Monarch Co., 296 F.2d 230, 232, 132 USPQ 6, 8 (CCPA 1961); In re Cofer, 354 F.2d 664, 668, 148 USPQ 268, 271-72 (CCPA 1966). Furthermore, our reviewing court states in In re Piasecki, 745 F.2d at 1472, 223 USPQ at, 788 the following: The Supreme Court in Graham v. John Deere Co., 383 U.S. 1 (1966), focused on the procedural and evidentiary processes in reaching a conclusion under section 103. As adapted to ex parte procedure, Graham is interpreted as continuing to place the “burden of proof on the Patent Office which requires it to produce the factual basis for its rejection of an application under sections 102 and 103." (Citing In re Warner, 379 F.2d 1011, 1016, 154 USPQ 173, 177 (CCPA 1967)). On page 7 of the answer, Appellant refers to reference Cocanougher, U.S. Patent No. 5,212,662. We note that this reference was not relied upon in the rejection. Our reviewing court has stated that where a reference is relied on to support a rejection, whether or not in a minor capacity, there would appear to be no excuse for not positively including the reference in the statement of the rejection. In re Hoch, 428 F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970). 10Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 NextLast modified: November 3, 2007