Appeal No. 1999-2290 Page 4
Application No. 08/763,955
In reaching our decision in this appeal, we have
carefully considered the subject matter on appeal, the
rejection advanced by the examiner, and the evidence of
obviousness relied upon by the examiner as support for the
rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, appellant's arguments
set forth in the brief along with the examiner's rationale in
support of the rejection 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 7-14 and 16-18. 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
so doing, the examiner is expected to make the factual
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