Appeal No. 2000-2210
Application No. 09/002,828
particular art would have suggested to one of ordinary skill in
the art the obviousness of the invention as set forth in claims
1-19. Accordingly, we affirm.
Appellant nominally indicates (Brief, page 3) that all of
the appealed claims stand or fall separately. We will consider
the claims separately only to the extent that separate arguments
are of record in this appeal. 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 Appellant to overcome the
prima facie case with arguments 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 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); and In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147
(CCPA 1976).
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