Appeal No. 2001-1664
Application No. 08/960,787
OPINION
We have considered the rejections advanced by the Examiner
and the supporting arguments. We have, likewise, reviewed the
Appellant's arguments set forth in the briefs.
We reverse.
REJECTION UNDER 35 U.S.C. § 103
As a general proposition, in an appeal involving a rejection
under 35 U.S.C. § 103, an examiner is under a burden to make out
a prima facie case of obviousness. If that burden is met, the
burden of going forward then shifts to the applicant to overcome
the prima facie case with argument and/or evidence. Obviousness,
is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986);
In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147
(CCPA 1976).
At the outset, we note that Appellant has elected, to have
all the claims on appeal stand or fall together, claim 1 being
elected as a representative of the group (brief at page 3).
4
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007