Appeal No. 2006-0014 Παγε 3
Application No. 09/922,182
3. An Examiner's Answer was mailed on June 13, 2005. In the answer, the
examiner sets forth in a chart (pp. 7-9) why the Kim publication is prior art to the claims
under appeal.
4. A Reply Brief was filed on July 1, 2005. In the Reply Brief, the appellants
argue (pp. 1-4) for the first time why the chart set forth in the answer is insufficient to
establish the Kim publication as prior art to the claims under appeal.
5. On July 13, 2005 an Office communication was mailed noting that the reply
brief had been entered and considered and that the application had been forwarded to
the Board of Patent Appeals and Interferences for decision on the appeal. In this
communication, the examiner did not respond to the arguments raised for the first time
in the Reply Brief.
ACTION
The burden of establishing a prima facie case of anticipation resides with the
examiner. See In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984). Likewise, 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.
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