Appeal No. 2001-2212
Application No. 09/019,409
particular art would have suggested to one of ordinary skill in the
art the obviousness of the invention as set forth in claims 1-3,
6, 7, and 12-20. Accordingly, we affirm.
Appellants have nominally indicated (Brief, page 5) that the
appealed claims do not stand or fall together and have made several
arguments in response to the Examiner’s obviousness rejection. We
will address these arguments accordingly and will consider the
appealed claims separately only to the extent that separate
arguments are of record in this appeal. Any dependent claim not
argued separately in the Brief 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 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 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
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