Appeal No. 2002-1578
Application No. 08/814,928
art the obviousness of the invention as set forth in claims 31-37.
Accordingly, we affirm.
Appellants indicate (Brief, page 6) that the claims on appeal
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 31. Accordingly, we will
select independent claim 31 as the representative claim for all the
claims on appeal, and claims 32-27 will stand or fall with claim
31. 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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