Appeal No. 2000-2232
Application 08/483,928
F.2d ____, _______, _____ USPQ _____ , _____ (Fed. Cir.
2002)(Appeal no. 00-1158).
We therefore agree with Appellant that the Examiner has
failed to set forth a prima facie case. The Examiner must
establish why one having ordinary skill in the art would have
been led to the claimed invention by the express teachings or
suggestions found in the prior art, or by implications
contained in such teachings or suggestions. The references of
record fail to provide express teachings or suggestions to
make the combinations suggested by the Examiner.
Therefore, we will not sustain the rejection of claims
21-37 under the judicially created doctrine of obviousness-
type double patenting over claims 1-22 of Lemelson '101 in
view of Lemelson '563.
B. Rejection of claims 21, 23-28, 30 and 32-37 under the
judicially created doctrine of obviousness-type double
patenting over claims 1-19 of Lemelson 4,604,668 in view of
Lemelson 3,943,563
Claims 21, 23-28, 30 and 32-37 stand rejected under the
judicially created doctrine of obviousness-type double
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