Appeal No. 2003-1856
Application No. 08/879,322
Claims 1-10 and 12-20 stand rejected under 35 U.S.C. § 103.
As evidence of obviousness, the examiner offers Queisser in view
of Wilkinson with regard to claims 1, 3-6 and 12, adding Bolle to
this combination with regard to claims 2, 7-10, 13, 14, 17 and
18, while adding Sistler to the original combination with regard
to claims 15 and 19. With regard to claims 16 and 20, the
examiner relies on a combination of all four of these references.
Claims 1-10 and 12-20 stand further rejected under 35 U.S.C.
§ 103 as unpatentable over Heck, Wilkinson, and Sistler.
Reference is made to the briefs 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,
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