Ex Parte BAILLEUL - Page 4



         Appeal No. 2004-0515                                                       
         Application No. 09/400,960                                                 

              It is our view, after consideration of the record before us,          
         that the evidence relied upon and the level of skill in the                
         particular art would not have suggested to one of ordinary skill           
         in the art the obviousness of the invention as recited in claims           
         1 and 2.  Accordingly, we reverse.                                         
              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 must stem from some                 
         teaching, suggestion or implication 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, 5 USPQ2d 1434, 1438 (Fed. Cir.), cert. denied, 488 U.S. 825          
         (1988); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc.,            
         776 F.2d 281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985),                     
         cert. denied, 475 U.S. 1017 (1986); ACS Hosp. Sys., Inc. v.                
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