Appeal No. 2000-0131
Application No. 08/800,972
Appellants’ arguments in response to the Examiner’s
obviousness rejection of the appealed claims are organized
according to a suggested grouping of claims indicated at page 4 of
the Brief. We will consider the appealed claims separately only to
the extent separate arguments for patentability are presented. Any
dependent claim not separately argued will stand or fall with its
base claim. Note In re King, 801 F.2d 1324, 1325, 231 USPQ 136,
137 (Fed. Cir. 1986); In re Sernaker, 702 F.2d 989, 991, 217 USPQ
1, 3 (Fed. Cir. 1983).
As a general proposition in an appeal involving a rejection
under 35 U.S.C. § 103, an Examiner is under a burden to make out a
prima facie case of obviousness. If that burden is met, the burden
of going forward then shifts to Appellants to overcome the prima
facie case with argument and/or evidence. Obviousness is then
determined on the basis of the evidence as a whole and the relative
persuasiveness of the arguments. See In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Hedges, 783 F.2d
1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745
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