Appeal No. 2005-0499
Application No. 09/812,733
examiner’s new rationale in the Reply Brief, but did not, other than with the inferences
that may be drawn from the act of submitting an amendment to cancel instant claim 34.4
The examiner bears the initial burden of presenting a prima facie case of
unpatentability. If that burden is met, the burden of coming forward with evidence or
argument shifts to the applicant. After evidence or argument is submitted by the
applicant in response, patentability is determined on the totality of the record, by a
preponderance of evidence with due consideration to persuasiveness of argument. In
re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Since appellants have not persuaded us of error in the examiner’s findings in
support of the rejection of at least representative claim 34, we sustain the rejection on
appeal.
CONCLUSION
The rejection of claims 34, 37, and 38 under 35 U.S.C. § 103 is affirmed.
4 The examiner had authority to refuse entry of the amendment filed with the Reply Brief but, as
we have previously noted, not the Reply Brief.
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