Appeal No. 2001-0966
Application No. 08/852,660
OPINION
We have carefully considered the subject matter on appeal, the
rejection advanced by the Examiner 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 Brief 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 not have suggested to one of ordinary skill in
the art the invention as recited in claims 1, 2, 4, 8-11, 13-21,
and 23-30. Accordingly, we reverse.
In rejecting claims under 35 U.S.C. § 103, it is incumbent
upon the Examiner to establish a factual basis to support the legal
conclusion of obviousness. See In re Fine, 837 F.2d 1071, 1073,
5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the Examiner is
expected to make the factual determinations set forth in Graham v.
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