Appeal No. 2003-2057
Application No. 09/201,865
coding to bit regions selected from variable-length coded bit regions according to a
predetermined priority for recovery.
Thus, while the rejection rests on assertions with respect to what the artisan
would have recognized or would have considered obvious, the examiner has provided
insufficient evidence in support of the findings. The allocation of burdens requires that
the USPTO produce the factual basis for its rejection of an application under 35 U.S.C.
§ § 102 and 103. In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984) (citing In re Warner, 379 F.2d 1011, 1016, 154 USPQ 173, 177 (CCPA 1967)).
See also In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001) (in
a determination of unpatentability “the Board must point to some concrete evidence in
the record in support of...[the]...findings”).
We thus cannot sustain the rejection of claims 1-3, 5, 8, 10, 12, 14-18, 20, 23,
25, 27, 29, and 33 under 35 U.S.C. § 103 as being unpatentable over Nagai.
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