Appeal No. 2001-1567 Page 4
Application No. 09/044,455
claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the
examiner. Upon evaluation of the evidence of obviousness
presented by the examiner, it is our conclusion that the
evidence adduced by the examiner is insufficient to establish
a prima facie case of obviousness with respect to the claims
under appeal. Accordingly, we will not sustain the2
examiner's rejection of claims 1, 2, 4-6, 8-12, 14-16, 18 and
19 under
35 U.S.C. § 103. Our reasoning for this determination
follows.
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of
obviousness is established by presenting evidence that would
2Accordingly there is no need for us to consider the 37
CFR § 1.132 declaration of William R. Kennedy filed on
February 15, 2000. We note that the examiner never treated
this declaration even through it was argued in the amendment
filed on February 15, 2000, the brief and the reply brief.
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