Appeal No. 2000-0428
Application No. 08/667,291
The allocation of burdens requires that the USPTO produce the factual basis for
its rejection of an application under 35 U.S.C. § § 102 and 103. In re Piasecki, 745
F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984) (citing In re Warner, 379 F.2d
1011, 1016, 154 USPQ 173, 177 (CCPA 1967)). The one who bears the initial burden
of presenting a prima facie case of unpatentability is the examiner. In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
We are persuaded by appellants that the evidence provided by Scott and Wells
fails to establish prima facie obviousness of the subject matter of claim 5. The only
other independent claim on appeal (claim 29) also requires uniform luminance levels.
The examiner relies on the discussion with respect to claim 5 (see Answer at 10), which
we have addressed. We thus do not sustain the rejection of claims 5-10, 14, 29, and
30 under 35 U.S.C. § 103 as being unpatentable over Scott and Wells.
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