Appeal No. 2002-1785
Application No. 09/239,338 Page 3
decision. Arguments which appellants could have made but chose
not to make in the brief have not been considered. See 37 CFR
1.192(a).
OPINION
In reaching our decision in this appeal, we have carefully
considered the subject matter on appeal, the rejection advanced
by the examiner, 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 brief along with the
examiner's rationale in support of the rejection and arguments in
rebuttal set forth in the examiner's answer. Upon consideration
of the record before us, we reverse, for the reasons set forth by
appellants.
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
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