Appeal No. 2001-0518
Application No. 08/745,524
Chen et al. (Chen) 5,396,583 Mar. 7, 1995
Claims 1 through 21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ueno in view of Chen.
Rather than repeat the arguments of appellant and the examiner, we make
reference to the brief (paper no. 18) and the examiner’s answer (paper no. 19) for the
respective details.
OPINION
We have considered the rejection advanced by the examiner and the supporting
arguments. We have, likewise, reviewed the appellant’s arguments set forth in the
brief.
We reverse.
REJECTION UNDER 35 U.S.C. § 103
As a general proposition, in an appeal involving a rejection under 35 U.S.C.
§ 103, an examiner is under a burden to make out a prima facie case of obviousness.
If that burden is met, the burden of going forward then shifts to the applicant to
overcome the prima facie case with argument and/or evidence. Obviousness, is then
determined on the basis of the evidence as a whole and the relative persuasiveness of
the arguments. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992); In re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986);
In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re
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