Appeal No. 2001-0646
Application No. 09/227,935
OPINION
We have carefully considered the subject matter on appeal,
the rejection advanced by the Examiner, the arguments in support
of the rejection, and the evidence of obviousness relied upon by
the Examiner as support for the rejection. We have, likewise,
reviewed and taken into consideration, in reaching our decision,
Appellants’ arguments set forth in the Briefs along with the
Examiner’s rationale in support of the rejection and arguments in
rebuttal set forth in the Examiner’s Answer.
It is our view, after consideration of the record before us,
that the evidence relied upon and the level of skill in the
particular art would have suggested to one of ordinary skill in
the art the obviousness of the invention as set forth in claims
1, 2, and 4. Accordingly, we affirm.
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 Appellants 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
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