Appeal No. 2004-0984
Application No. 09/501,970 Page 5
re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). If that burden is met, the burden then shifts to the
applicant to overcome the prima facie case with argument and/or
evidence. Obviousness is then determined on the basis of the
evidence as a whole. See id.; In re Hedges, 783 F.2d 1038, 1039,
228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d
1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re
Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
The examiner's position (Paper No. 25, mailed May 22, 2003,
page 3) is that Weider discloses ear cups, headband, loudspeaker,
microphone, radio, control unit actuatable by a button set having
a microphone ON/OFF switch and a squelch control switch located
on the ear cup, but fails to disclose the implementation of an
ON/OFF switch and squelch control switch. To overcome this
deficiency of Weider, the examiner turns to Lansang for a
teaching of on/off switches and channel selector control
switches, each having two buttons which are functionally
connected. The examiner takes the position that it would have
been obvious to implement the use of two button switches of
Lansang for the switches of Weider for the purpose of precise
controlling of the functions of these switches. The examiner
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