Appeal No. 2001-1606
Application 08/582,661
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, the appellant’s
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 not have suggested to one of ordinary skill
in the art the obviousness of the invention as set forth in
claims 1, 3-21 and 23-25. 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
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