Appeal No. 2002-1995
Application No. 09/071,488
The examiner relies on the following references:
Matthews 5,432,510 Jul. 11, 1995
Michel et al. (Michel) 5,579,165 Nov. 26, 1996
Durrett 5,964,830 Oct. 12, 1999
(filed Aug. 20, 1996)
Claims 1-9, 14-18, and 21-24 stand rejected under 35 U.S.C.
§ 103. As evidence of obviousness, the examiner cites Michel
with regard to claims 1-9, 15-18, and 21-23, adding Durrett with
regard to claims 2, 14, 16, and 24. The examiner further offers
Michel and Matthews with regard to claims 7-9, and 21-23.
Reference is made to the briefs and answer for the
respective positions of appellants and the examiner.
OPINION
At the outset, we note that the invention of the instant
application is similar to the invention which was the subject
matter of our earlier decision in Application Serial No.
09/071,489 (Appeal No. 2003-0167). That decision was rendered on
Nov. 26, 2003.
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
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