Appeal No. 2005-2174 Application No. 10/060,614 Cir. 1985)). Considered in light of the foregoing, the combined teachings of Boggess and Sernovitz provide an evidentiary basis sufficient to establish a prima facie case of obviousness with respect to the subject matter recited in claims 61-71. After a prima facie case of obviousness is established, the burden of going forward shifts to the applicant. In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). When prima facie obviousness is established and evidence is submitted in rebuttal, the decision-maker must start over and evaluate the facts established by the rebuttal evidence along with the facts on which the earlier conclusion was reached. In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976). Patentability is then 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) In the present case, the appellant relies on the above listed 37 CFR § 1.132 declarations as objective evidence of non-obviousness which purportedly demonstrates that the claimed invention has enjoyed commercial success, solved a long felt need in the art and been copied by a competitor. The Reynolds I declaration focuses, as do all of the declarations, on a product marketed by Impulse Promotional Products, Inc. as the “Impulse 220,” which product allegedly embodies the claimed invention (see paragraphs 2-5 and Exhibits A and B). The declarant (see paragraphs 6-23) states gross revenues for the Impulse 220 of 12Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 NextLast modified: November 3, 2007