Appeal No. 2005-2657 Page 17
Application No. 09/898,497
Turning to dependent claims 2, 4, 6-11, 13, 15, 17-22, 24,
26 and 28-33, we note that these claims have not been separately
argued by appellants and fall with the claims from which they
depend. The rejection of claims 2, 4, 6-11, 13, 15, 17-22, 24,
26 and 28-33 is affirmed.
We turn next to the rejection of claims 3, 5, 14, 16, 25 and
27 under 35 U.S.C. § 103(a) as being unpatentable over Owensby in
view of Jones.
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
examiner is expected to make the factual determinations set forth
in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467
(1966), and to provide a reason why one having ordinary skill in
the pertinent art would have been led to modify the prior art or
to combine prior art references to arrive at the claimed
invention. Such reason must stem from some teaching, suggestion
or implication in the prior art as a whole or knowledge generally
available to one having ordinary skill in the art. Uniroyal,
Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1051, 5 USPQ2d 1434,
1438 (Fed. Cir. 1988); Ashland Oil, Inc. v. Delta Resins &
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