Appeal No. 2001-1947
Application 08/333,202
After evidence or argument is submitted by the applicant in response to an
obviousness rejection, "patentability is determined on the totality of the record, by a
preponderance of evidence with due consideration to persuasiveness of argument." In
re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); see In re
Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787 (Fed. Cir. 1984) ("All evidence
on the question of obviousness must be considered, both that supporting and that
rebutting the prima facie case."). On balance, we believe that the totality of the
evidence presented by the examiner and appellants weighs in favor of finding the
claimed invention nonobvious in view of the cited references. The rejection of the
claims for anticipation, or in the alternative for obviousness of the claimed invention, is
reversed.
Other Issue
Upon return of the application to the examiner, it is recommended that the
examiner review Serial No. 08/337,671 (Appeal No. 2001-1259) to determine if any
double patenting issues exist, in particular between claim 22 of the pending application
and claim 20 of Serial No. 08/337,671.
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