Appeal No. 2002-0097
Application No. 09141,088
Anupam et al. (Anupam) 5,991,796 Nov. 23, 1999
(eff. filing date Jul. 16, 1996).
Claims 1-5, 7-9 and 11 stand rejected under 35 U.S.C. § 103
as unpatentable over Scherpbier in view of Anupam.
Reference is made to the briefs and answer for the
respective positions of appellants and the examiner.
OPINION
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. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467
(1966), and to provide a reason why one having ordinary skill in
the pertinent art would have been led to modify the prior art or
to combine prior art references to arrive at the claimed
invention. Such reason much stem from some teachings,
suggestions or implications in the prior art as a whole or
knowledge generally available to one having ordinary skill in the
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