Appeal No. 2001-1392 Page 7
Application No. 08/900,586
examiner fails to address the structure of the test matrix as set forth in step a) of
claim 1.
In our opinion, the examiner failed to meet his burden3 of establishing a
prima facie case of obviousness. If the examiner fails to establish a prima facie
case, the rejection is improper and will be overturned. In re Fine, 837 F.2d
1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Accordingly, we reverse the
rejection of claims 1-13 under 35 U.S.C. § 103 as being unpatentable over Baker in
view of Besch and further in view of Yip.
REVERSED
Toni R. Scheiner )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Donald E. Adams )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
Demetra J. Mills )
Administrative Patent Judge )
Jerome L Jeffers
PO Box 40
Elkhart IN 46515-0040
3 In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
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