Appeal No. 2004-0100
Application No. 09/650,843
The examiner’s assumptions that plates 40 and 50 could be
fastened by rivets and therefore slots would be required for the
rivets is not supported by the disclosure of Tabler.
We note that the initial burden of presenting a prima facie case
of obviousness rests on the examiner. In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). It is
impermissible to conclude that an invention is obvious based
solely on what the examiner considers to be basic knowledge or
common sense. See In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d
1693, 1697 (Fed. Cir. 2001). Thus, the burden is on the examiner
to identify concrete evidence in the record to support his con-
clusion that it would have been obvious employ slots and use
rivets to attach plates 40 and 50 to member 42 of Tabler. In
re Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1316-17 (Fed.
Cir. 2000). In the present case, the examiner has simply failed
to meet this burden.
We therefore reverse the rejection of claims 8 and 9
under 35 U.S.C. § 103 as being unpatentable over Tabler.
9
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