Appeal No. 2004-2297 Page 3
Application No. 10/196,817
have made but chose not to make in the brief have not been
considered. See 37 CFR § 41.37(c)(1)(vii).
OPINION
In reaching our decision in this appeal, we have carefully
considered the subject matter on appeal, the rejection advanced
by the examiner, and the evidence of obviousness relied upon by
the examiner as support for the rejection. We have, likewise,
reviewed and taken into consideration, in reaching our decision,
appellants' arguments set forth in the brief along with the
examiner's rationale in support of the rejections and arguments
in rebuttal set forth in the examiner's answer.
Upon consideration of the record before us, we reverse,
essentially for the reasons set forth by appellants. We observe
at the outset appellants' statement (brief, page 3) that "claims
4 and 11 stand and fall together." Accordingly, we select claim
4 as representative of the group.
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
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