Appeal No. 2001-2119
Application No. 08/826,744
ordinary skill in the art the obviousness of the invention
as set forth in claims 2-6, 8, 9, and 12-16. Accordingly,
we affirm.
Appellant’s arguments in response to the Examiner’s
rejection of the appealed claims are organized according to
a suggested grouping of claims indicated at page 4 of the
Brief. We will consider the appealed claims separately only
to the extent separate arguments for patentability are
presented. Any dependent claim not separately argued will
stand or fall with its base claim. Note In re King, 801
F.2d 1324, 1325, 231 USPQ 136, 137 (Fed. Cir. 1986); In re
Sernaker, 702 F.2d 989, 991, 217 USPQ 1, 3 (Fed. Cir. 1983).
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 Appellant 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
5
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: November 3, 2007