Appeal No. 2001-1844
Application No. 09/178,951
our review, we have made the determination that the examiner’s
above-noted rejection will not be sustained. Our reasons
follow.
Before turning to the merits of the rejection before us
on appeal, we note our agreement with the examiner’s position
(answer, page 4) that Johnson is available as a reference in
the present case under 35 U.S.C. § 102(e) since that patent is
“by another” and its filing date of May 30, 1997 is before the
filing date of the present application (October 26, 1998) and
appellants have not provide any evidence to prove an actual
date of completion of the invention prior to the filing date
of the Johnson patent (see, 37 CFR § 1.131).
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); In re Oetiker, 977 F.2d 1443,
1446, 24 USPQ2d 1443, 1445 (Fed. Cir. 1992)), which is
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