Appeal No. 2002-0607
Application No. 09/258,138
body (as set forth in the last paragraph of claim 1). While we
might speculate as to precisely how the examiner intends to apply
the Sumida and Dietrich references against claim 1, such
speculation would not give appellants a fair opportunity to
response. It is therefore our conclusion that the examiner has
not met his initial burden of establishing a prima facie case of
obviousness of independent claim 1.
In light of the foregoing, we are constrained to reverse the
standing rejection of independent claim 1, as well as claim 6
that depends therefrom, as being unpatentable over Sumida in view
of Dietrich. We are also constrained to reverse the standing
rejections of dependent claims 2-5 under 35 U.S.C. § 103(a) since
it is not apparent how the tertiary references applied in the
rejections of these claims might cure the fundamental defects
noted above in the examiner’s prima facie case with respect to
base claim 1.
Remand
This case is remanded to the examiner for consideration of
following matters.
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