Appeal No. 2001-0743
Application 08/938,346
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 1-6 and 8-16. Accordingly, we reverse.
Even though the examiner has applied four different
groupings of references to reject all the claims on appeal,
appellants have, nevertheless, indicated that the claims should
stand or fall together as a single group [brief, page 3]. Since
appellants have not argued each of the rejections independently,
we will consider the rejection against independent claim 1 as
representative of all the claims on appeal. 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).
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
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led to
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