Appeal No. 2002-2330
Application No. 09/116,260 Page 3
rejection, and to appellants' brief (Paper No. 35, filed April
22, 2002) for appellants' arguments thereagainst. Only those
arguments actually made by appellants have been considered in
this decision. Arguments which appellants could have made but
chose not to make in the brief have not been considered. See 37
CFR 1.192(a).
OPINION
In reaching our decision in this appeal, 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,
appellants' arguments set forth in the brief along with the
examiner's rationale in support of the rejection and arguments
in rebuttal set forth in the examiner's answer.
Upon consideration of the record before us, we reverse,
essentially for the reasons set forth by appellants.
We begin with independent claim 36. 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,
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