Ex Parte Martter et al - Page 3




               Appeal No. 2005-0128                                                                                              
               Application No. 10/120,158                                                                                        


               answer (mailed Jul. 1, 2004) for the examiner's reasoning in support of the rejections,                           
               and to appellants’ brief (filed Feb. 12, 2004) for appellants’ arguments thereagainst.                            
                                                           OPINION                                                               
                      In reaching our decision in this appeal, we have given careful consideration to                            
               appellants’ specification and claims, to the applied prior art references, and to the                             
               respective positions articulated by appellants and the examiner.  As a consequence of                             
               our review, we make the determinations which follow.                                                              
                      In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden                           
               of presenting a prima facie case of obviousness.  See In re Rijckaert, 9 F.3d 1531,                               
               1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993).  A prima facie case of obviousness is                                
               established by presenting evidence that the reference teachings would appear to be                                
               sufficient for one of ordinary skill in the relevant art having the references before him to                      
               make the proposed combination or other modification.  See In re Lintner, 458 F.2d                                 
               1013, 1016, 173 USPQ 560, 562 (CCPA 1972).  Furthermore, the conclusion that the                                  
               claimed subject matter is prima facie obvious must be supported by evidence, as                                   
               shown by some objective teaching in the prior art or by knowledge generally available to                          
               one of ordinary skill in the art that would have led that individual to combine the relevant                      
               teachings of the references to arrive at the claimed invention.  See In re Fine, 837 F.2d                         
               1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).  Rejections based on § 103 must                                 
               rest on a factual basis with these facts being interpreted without hindsight reconstruction                       

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