Appeal No. 1999-1281
Application No. 08/712,249
Therefore, we agree with appellants (Reply Brief, page 8) that “[n]o prima
facie case has been made out and therefore the burden has not properly shifted to
[a]ppellants to provide evidence of unexpected superior results.”
The initial burden of presenting a prima facie case of obviousness rests on
the examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992). In our opinion, since the examiner’s combination of references fail to
teach a heparin molecule having more than one metal salt thereon, the examiner
has not meet her burden of establishing a prima facie case of obviousness under
35 U.S.C. § 103.
Where the examiner fails to establish a prima facie case, the rejection is
improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596,
1598 (Fed. Cir. 1988). Accordingly, we reverse the examiner’s rejection of claims
27-49 under 35 U.S.C. § 103.
Having determined that the examiner has not established a prima facie case
of obviousness, we find it unnecessary to discuss appellants evidence of
unexpected results relied on by appellants to rebut any such prima facie case.
REVERSED
)
William F. Smith )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Carol A. Spiegel )
Administrative Patent Judge ) APPEALS AND
6
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007