Appeal No. 2003-0735
Application 09/238,859
the art the obviousness of the invention as set forth in claims
2, 4, 5, 7, and 8. Accordingly, we affirm.
Appellants indicate (Brief, page 7) that appealed claims 2,
4, 5, 7, and 8 stand or fall together as a group. Consistent
with this indication, Appellants’ arguments are directed solely
to features which are set forth in independent claim 2.
Accordingly, we will select independent claim 2 as the
representative claim for all the claims on appeal, and claims 4,
5, 7, and 8 will stand or fall with claim 2. Note In re King,
801 F.2d 1324, 1325, 231 USPQ 136, 137 (Fed. Cir. 1986); In re
Sernaker, 702 F.2d 989, 991, 217 USPQ 1, 3 (Fed. Cir. 1983).
As a general proposition in an appeal involving a rejection
under 35 U.S.C. § 103, an Examiner is under a burden to make out
a prima facie case of obviousness. If that burden is met, the
burden of going forward then shifts to Appellants to overcome the
prima facie case with argument and/or evidence. Obviousness is
then determined on the basis of the evidence as a whole and the
relative persuasiveness of the arguments. See In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986);
In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147
(CCPA 1976).
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