Appeal No. 2002-0058
Application No. 08/859,865
OPINION
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, the
appellants’ arguments set forth in the briefs along with the
examiner’s rationale in support of the rejection 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 have suggested to one of
ordinary skill in the art the obviousness of the invention
as set forth in claims 1, 4-9, 12, 15-20, 23, 25-28 and 31-
33. We reach the opposite conclusion with respect to claims
2, 3, 10, 11, 13, 14, 21, 22, 24, 29, 30 and 34.
Accordingly, we affirm-in-part.
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
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