Appeal No. 2002-0128
Application No. 08/878,588
OPINION
We have carefully considered the subject matter on appeal,
the rejection advanced by the Examiner, the arguments in support
of the rejection 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,
Appellants’ 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 invention as set forth in claims 1-6 and 17-22.
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, 1073-74, 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,
17-18, 148 USPQ 459, 467 (1966), and to provide a reason why one
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