Appeal No. 2004-1092 Page 10
Application No. 10/014,425
factual question. In re Johnson, 747 F.2d 1456, 1460, 223 USPQ
1260, 1263 (Fed. Cir. 1984). Thus, it is incumbent upon
appellants to supply the factual basis to rebut the prima facie
case of obviousness established by the examiner. See, e.g., In
re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
Appellants, however, do not provide an adequate explanation
regarding the factual showing in the declaration, that is
referred to in the brief, to support a conclusion of unexpected
advantages.
Having reconsidered all of the evidence of record proffered
by the examiner and appellants, we have determined that the
evidence of obviousness, on balance, outweighs the evidence of
nonobviousness. Hence, we conclude that the claimed subject
matter as a whole would have been obvious to one of ordinary
skill in the art. Accordingly, we affirm the examiner’s § 103(a)
rejection.
CONCLUSION
The decision of the examiner to reject claims 2, 5 and 11
under 35 U.S.C. § 103(a) as being unpatentable over Jin is
affirmed.
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