Appeal No. 2004-1815
Application No. 09/781,582 Page 5
41 and 43 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ness ‘289 in view of Newarski.
We refer to the brief and reply brief and to the answer for
a complete exposition of the opposing viewpoints expressed by
appellants and the examiner concerning the issues before us on
this appeal.
OPINION
Upon careful review of the respective positions advanced by
appellants and the examiner with respect to the rejections that
are before us for review, we find ourselves in agreement with
appellants’ viewpoint in that the examiner has failed to carry
the burden of establishing a prima facie case of anticipation or
obviousness with respect to the rejections presented except for
the § 103(a) rejection of claims 35-37, 50 and 51 over Ness ‘289.
Accordingly, except for that last mentioned rejection, we will
not sustain any of the examiner’s other rejections. See In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992); In re Piasecki, 745 F.2d 1468, 1471-1472, 223 USPQ 785,
787-788 (Fed. Cir. 1984). Our reasoning follows.
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