Appeal No. 1999-0260
Application 08/571,064
Rather than reiterate the arguments of Appellants and the
Examiner, reference is made to the Brief,1 Reply Brief,2 Final
Rejection3 and the Examiner's Answer4 for the respective details
thereof.
OPINION
We will not sustain the rejection of claims 1-9 and 13-18
under 35 U.S.C. § 103.
The Examiner has failed to set forth a prima facie case. It
is the burden of the Examiner to establish why one having
ordinary skill in the art would have been led to the claimed
invention by the express teachings or suggestions found
in the prior art, or by implications contained in such teachings
or suggestions. In re Sernaker, 702 F.2d 989, 995, 217 USPQ 1, 6
(Fed. Cir. 1983). The Federal Circuit states that
"[t]he mere fact that the prior art may be modified in
the manner suggested by Examiner does not make the
modification obvious unless the prior art suggested the
desirability of the modification."
1 The Brief was received April 6, 1998
2 The Reply Brief was received July 22, 1998
3 The Final Rejection was mailed October 15, 1997
4 The Examiner's Answer was mailed May 19, 1998
4
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