Appeal No. 2001-0280
Application No. 08/890,398
Rather than reiterate the arguments of Appellant and the
Examiner, reference is made to the Brief (Paper No. 18) and
Answer (Paper No. 19) for the respective details.
OPINION
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 obviousness of the invention as set forth in
claims 1-19. 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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