Appeal No. 1999-2248
Application No. 08/960,255
dispense with proof by evidence when the proposition at issue
is not supported by a teaching in a prior art reference or
shown to be common knowledge of unquestionable demonstration.
Our reviewing court requires 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 section 102 and 103". Citing
In re Warner, 379 F.2d 1011, 1020, 154 USPQ 173, 177
(CCPA 1967).
Therefore, we will not sustain the rejections of claims
3-6 and 8-9 under 35 U.S.C. § 103(a) as being unpatentable
over the admitted prior art.
We have not sustained the rejection of claims 1-2 and 7
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