Appeal No. 2001-2267
Application 08/828,687
Rather than repeat the arguments of appellant or the
examiner, we make reference to the brief and the answer for the
respective details thereof.
OPINION
We have carefully considered the subject matter on appeal,
the rejections advanced by the examiner and the evidence of
obviousness relied upon by the examiner as support for the
rejections. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellant’s
arguments set forth in the brief along with the examiner’s
rationale in support of the rejections 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 1-12. 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
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