Appeal No. 2001-1842 Page 6
Application No. 08/684,005
For the forgoing reasons, it is our opinion that the examiner failed to meet
her burden2 of establishing a prima facie case of obviousness. Accordingly we
reverse the rejection of claims 81, 84, 85, 87-94, 103, 104, 106-110, 116, 119
and 121-125 under 35 U.S.C. § 103 as being unpatentable over Bauer.
Bauer in view of Hesse:
The examiner relies on Hesse (Answer, bridging paragraph, pages 5-6), to
“teach the alteration in sugar concentration in plants by the introduction of one or
more genes, including sucrose synthase, into the plants … which cause changes
in sucrose concentrations … [and for] promoters suitable for the expression
thereof within the plants.” Hesse, however, fails to make up for the deficiencies
in Bauer as discussed supra.
Accordingly, we reverse the rejection of claims 82, 83, 95-102, 111-115,
117, 118, 120 and 126-130 under 35 U.S.C. § 103 as being unpatentable over
Bauer in view of Hesse.
2 The initial burden of presenting a prima facie case of obviousness rests on the examiner. In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
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