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. 11Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 NextLast modified: November 3, 2007