Appeal No. 2003-0350
Application 08/771,399
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the Examiner and the evidence
of obviousness relied upon by the Examiner as support for the
rejections. 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 rejections 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 obviousness of the invention as set forth in
appealed claims 1-11, 27, 31, and 35-39. 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, 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
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