Appeal No. 2002-1404 Page 3
Application No. 08/891,918
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellants regarding the above-noted rejections, we make reference to the answer
(Paper No. 37, mailed August 29, 2001) for the examiner's complete reasoning in
support of the rejections, and to the brief (Paper No. 36, filed July 20, 2001) and reply
brief (Paper No. 38, filed October 19, 2001) for the appellants' arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants' specification and claims, to the applied prior art, to the evidence of non-
obviousness that is of record in this application (e.g., the declaration of Dr. David
Kennedy, various journal articles, etc. ) and to the respective positions articulated by
the appellants and the examiner. Upon evaluation of all the evidence before us, it is
our conclusion that the evidence adduced by the examiner is insufficient to establish a
case of obviousness with respect to the claims under appeal.2 Accordingly, we will not
sustain the examiner's rejection of claims 21, 26, 29 and 34 under 35 U.S.C. § 103.
Our reasoning for this determination follows.
2 In rejecting claims under 35 U.S.C. § 103, the examiner bears the burden of presenting a case
of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993).
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