Appeal No. 2004-0672
Application No. 09/894,704
water in a substantially vertical plane” pursuant to the
independent claim under review. Viewed from this perspective, it
appears that claim 56 does not distinguish over Yoshida
considered alone. See In re Fracalossi, 681 F.2d 792, 794, 215
USPQ 569, 571 (CCPA 1982)(evidence establishing lack of novelty
necessarily evidences obviousness).
For the above stated reasons, the reference evidence applied
in the examiner’s section 103 rejection establishes a prima facie
case of unpatentability which the appellants have failed to rebut
with argument and/or evidence of patentability. We hereby
sustain, therefore, the section 103 rejection of claims 56-62 as
being unpatentable over Yoshida in view of the Japanese
reference. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
The decision of the examiner is affirmed-in-part.
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