Appeal No. 2002-0984
Application 09/246,179
generally, Ullmann's does not disclose or suggest the use of IR-
ATR spectroscopy at all and none of the Doyle or Berard
references teach or suggest the limitation in step c) of claim 6.
If, as the examiner has suggested, he indeed has in his
possession the evidence which would have established these
parameters to be known, he should have come forward with that
evidence during the prosecution of this application. While we
agree with the examiner's observation that the scope of claim 6
is considerable, to make out a prima facie case of obviousness it
remains the examiner's burden to present evidence of obviousness
of the subject matter claimed. It is not, as the examiner has
stated in his answer, appellants' burden to rebut the examiner's
unsupported allegations and conclusions of obviousness.
Therefore, based on this record, we are constrained to reverse
the rejections because he has failed to meet his burden of proof.
Accordingly, we conclude that the examiner has failed to
make out a prima facie case of obviousness based on the
combination of any of Doyle '389, Doyle '551, Doyle ''825 or
Berard considered with Ullmann's and the "Examiner's Notice."
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