Appeal No. 2002-2011
Application No. 09/163,643
Claims 1, 3-10, 12-21 and 23-28 stand rejected under
35 U.S.C. § 103. As evidence of obviousness, the examiner offers
Burke, Maarek and Mantha with regard to claims 1, 5, 6, 9, 12-14,
17-21, 23, 24 and 26, adding Dolan to this combination with
regard to claims 3, 4, 8, 10, 15, 16 and 25. The examiner
applies Burke and Maarek against claims 7, 27 and 28.
Reference is made to the brief and answer for the respective
positions of appellants and the examiner.
OPINION
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 having ordinary skill in
the pertinent art would have been led to modify the prior art or
to combine prior art references to arrive at the claimed
invention. Such reason much stem from some teachings,
suggestions or implications in the prior art as a whole or
knowledge generally available to one having ordinary skill in the
art. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1051,
-3–
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