Appeal No. 2002-2201 Page 3
Application No. 09/699,539
Claims 17-241 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Barkhau in view of McCauley.2
We refer to the brief and reply brief and to the answer for
a complete exposition of the opposing viewpoints expressed by
appellants and the examiner concerning the issues before us on
this appeal.
OPINION
Upon careful review of the respective positions advanced by
appellants and the examiner with respect to the rejection that is
before us for review, we find ourselves in agreement with
appellants’ viewpoint in that the examiner has failed to carry
the burden of establishing a prima facie case of obviousness.
See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-1472, 223
1 While the examiner refers to claims 1-27 as being rejected
at page 3 of the answer, the inclusion of non-elected claims 25-
27 in the statement of rejection in the answer is considered to
be an inadvertent oversight as evident by a review of the final
rejection and item No. 7 of the answer.
2 We note that the examiner does not list or mention Kulig
(U.S. Patent No. 4,717,412) (final rejection, page 4) as a relied
upon reference in the answer. Nor has the examiner complained
that appellants’ briefs do not address Kulig. Accordingly, we do
not consider Kulig as evidence being relied upon by the examiner
in the rejection before us for review.
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